notes

CONFESSIONS. EVIDENCE POLICE

ILLEGALLYAMPROPERLY AND ENTRAPMENT

AND CRIMINAL

CHANGING

JUDICIAL

TO THE POLICE

UNDER THE ACT 1984:

EVIDENCE

AND PUBLIC

AND CRfMINAL

DAVID

OBTAINED

ANTHONY

ATTITUDES

INVESTIGATIONS

BROOKE

Thesis submitted for the Degree of Ph. D. University College, London.

1999

(IL

ABSTRACT

This thesis considers the law on confessions,illegally/improperly obtained evidence Police the and entrapment tmder and Criminal Evidence Act 1984.

There is a detailed discussionof the case-law and the principles which underlie that detailed discussion case-lawas well as a of the principles and policies which underlie the relevant statutory and common law provisions. There is also some discussionof is There false interrogation. the some of psychological aspectsof confessionsand historical discussion how law has the approached confessions, some of illegally/improperly obtained evidence and entrapmentbefore the enactment of the Police and Criminal EvidenceAct 1984. A major theme of this thesis is to illustrate how changing judicial and public attitudes to the police and criminal investigations from the mid nineteenth century to the day law have influenced the the on the three areas of criminal content of present discussion, illegally/improperly namely confessions, evidence under

obtained

evidence and entrapment. In particular this thesis has attempted to illustrate how judicial responses to Sections 76 2(a) and 76 2(b) and S.78 of the Police and Criminal Evidence Act have been influenced by changing public attitudes to the police, the integrity of their evidence to the criminal court and their role in the criminal justice system and society. In order to illustrate and highlight important points and arguments in the thesis, law issues identification is the to occasionally made and on evidence, reference forensic law issues the and evidence as well as on covert police accomplice evidence, involving However, is to made entrapment. no claim gather evidence not operations for comprehensive treatment of the law on identification evidence, accomplice forensic for is to those the made evidence, merely reference areas evidence or purposes of exposition on the main areas of study:

Confessions,illegally/improperly obtainedevidenceand entrapment. The name of the publishers and place of publication for books and monographs is in bibliography. in text the the given quoted

ii

ACKNOWLEDGEMENTS

I would like to express my thanks to the Supervisor of this thesis submitted for the degree of PhD., Professor 1. H. Dennis, Professor of English Law at University College, London. I would also like to thank Mr. P. Mirfield, Fellow of Jesus College, Oxford., who formed Confessions. It B. C. L. the that thesis on research which was supervised my base of this much expanded work. I would also like to thank my Father, Mother and Brother for their support.

iii

TABLE

OF CONTENTS

Pai2e Abstract Acknowledgments

CHAPTER 1:

CHAPTER 2:

CHAPTER 3:

An Overview of the Nineteenth Century to Present Day Attitudes to the Police, Confessions and Ille2aliv/ Iml2roReriv Obtained Evidence

1

Introduction The Police in the 19th Century The Development of the Police Investigative and Prosecutorial Roles in the mid to late Nineteenth Century The Police in the Twentieth Century up to PACE Public Attitudes to the Police up to the 1970s and the Reality of Policing Judicial Attitudes to Police Evidence in the Twentieth Century before PACE PACE and its aftermath Judicial Attitudes to Police Evidence in the post PACE era The Significance of the European Convention on Human Rights and the Human Rights Act of 1998 A Note on the Constitutional Position of the Police and Criminal Investigation

42

Confessions: An Historical Overview of the Issues

56

The Creditworthiness of Confessions The Authenticity of Confessions The Legitimacy of Confessions

56 58 65

The Creditworthiness interrozation police

77

Confessions: The Context of of

Introduction The context of Police Interrogation The reasons why Suspectsmight make False Confessions and a Typology of False Confessions Section 76 2(b) of the Police and Criminal Evidence Act 1984 The Interpretation of Section 76 2(b) and possible underlying Theories of Exclusion under Section 76 2(b) A Rival Interpretation of the Underlying Theories of Exclusion under Section 76 2(b) The Admissibility of Psychological and Psychiatric Evidence on the Section 76 2(b) issue

iv

I 3 5 13 20 23 29 34 40

77 77 79 83 89 96 102

Table of Contents (continued)

CHAPTER 4:

CHAPTER 5:

CHAPTER 6:

CHAPTER 7:

Pa2e

The Authenticity of Confessions

ill

Introduction The History of the Authenticity Issue up to PACE The PACE Caseson breach of the "verballing" Provisions of PACE The Authenticity of a Confession and the Section 76 2(b) issue The Consequencesof the Tape-Recording requirement Off the record Interactions and Informal Confessions Informal confessions

ill 112

131 136 138 140

The Leeitimacy of Confessions

150

Introduction The Legitimacy of Confessions issue Three Responses to the 'Legitimacy' Problem The decision in Rv Mason Section 58 of PACE and its Interpretation by the Courts Section 76 2(a) of PACE and its Interpretation by the Courts Undercover methods and the Legitimacy of Confessions so obtained

150 150 154 163 167

192

Reform of the Law of Confessions

206

The Issue The Reform Proposals The Corroboration Requirement in Scotland

206 210 221

IlleimlivAmproveriv

228

Obtained Evidence

Introduction An Historical Overview of the Issue The impact of Section 78 of the Police and Criminal Evidence Act on this topic Real Evidence obtained by an unlawful search The Theoretical Justifications for excluding Illegally or Improperly Obtained Evidence The Deterrence principle The Protective principle The Judicial Integrity principle Improperly Obtained Evidence and Covert Police Operations The Casespost PACE

V

123

172

228 228 236 242 242 245 248 251 260 265

Table of Contents (continued)

Paim

CHAPTER 8:

Entrapment

279

Definition Introduction The Historical Background The Home Office Circular to the Police on hiformants who take part in Crime Rv Sang and Entrapment Evidence The Modem Judicial View of Entrapment and Discretionary Exclusion The European Convention on Human Rights and Entrapment

279 280 281

CHAPTER 9:

291 292 294 302

Entrapment: The Theoretical Obiections

308

Introduction 'Me English Cases

308 314

CHAPTER 10: Conclusion

324

Police Interrogation under PACE defended The Importance of Judicial Decisions upholding the PACE Regime Summary

333 338

Biblioi! raph

343

Principal Works consulted Articles consulted Official Reports and Home Office Circulars Research Studies for the R.C.C.J. 1993 consulted for the thesis Table of Cases

343 349 354

vi

324

354 355

CHAPTER I AN OVERVIEW

OF THE NINETEENTH TOTHE

PRESENT DAY ATTITUDES

AND ILLEGALLYIIMPROPERLY

CENTURY TO

POLICE, CONFESSIONS OBTAINED EVIDENCE

Introduction

The aim of this thesis is to illustrate how the current law on Confessions and Improperly Obtained Evidence including evidence obtained by entrapmenthas been influenced by shifting judicial and public perceptions of the police and the crime developments in Wales. England In to these problem and order properly appreciate history improperly judicial to the obtained of attitudes confessionsand an overview of how be involve This the will also some considerationof evidence will undertaken. has justice in to the systemand society evolved. police role relation criminal The approach to the areas of the law of criminal evidence examined in this thesis is focuses from therefore purely not a purely evidentiary viewpoint, a viewpoint which discretions kinds the the governing admissibility of particular of on rules and is This is into that trial. to the the not evidentiary viewpoint criminal say evidence doctrines. The incomplete to evidentiary principles with regard necessarily always fact for the evidence or the purposes of admissibility of similar governing example, f(ii)-(iii) S. l. the the previous convictions of accused under of cross examination on the Criminal Evidence Act 1898 can be examined solely from the perspective of the Such issues can be viewed as "classic judicial function at the criminal trial. focus law is (1) the the where of criminal evidence" purely on the conundrums of doubt forensic is It issue trial. the true that these areas no process at and principles at be fruitfully from different law the explored a of criminal evidence can also of An example of this is Dr. Munday's law the the to the assumptions underpinning extent which on the cross examination of from deviates his the research of the previous convictions accused on examination of dishonesty link between in the commercial sphere the the strength of psychologists on perspective than the purely evidentiary.

kind However, is dishonesty in (2) this the testimonial sphere. of approach not and in for the the area of similar principles at stake a proper understanding of necessary facts or cross examination under the 1898 Act. The principles which inform the law fact evidence namely, the avoidance of undue prejudice to the accused on similar desirability be the the of material which adduction of evidential can very against

1

be issues determining fact in trial, the useful to the trier of can readily understood at development law history knowledge having the the the of without necessarily of of a frame hundred fact The (3) the on similar concernswhich years. past evidenceover the law on sin-dlarfact evidence in the light of jury trial can be appreciatedwithout regard to the history of that doctrine of the law of criminal evidence. However, in contrast the rules and principles governing the admissibility of be illegally detained improperly confession evidence and evidence cannot or satisfactorily understood solely from the purely evidentiary perspective. The rules and principles of the law of criminal evidence on confessions for example do of course govern the admissibility of that type of evidence to the criminal trial and to that extent it is possibleto view S.76 2(a) and (b) and S.78 of 'Me Police and Criminal Evidence Act 1984 as purely evidentiary norms but to fully appreciate the significance of these provisions as well as their evolution a broader perspectivethan the evidentiary is required. As ProfessorTwining has observedon the defects of a purely evidentiary approach to confessions and illegally obtained evidence which focuseson the doctrinesof admissibility, "... the phenomenon and problems are not primarily decent it is to the evidentiary and odd see principle of fair treatment of suspects and others being treated mainly as an evidentiary principle. " (4) It will be a major concern of this thesis to illustrate how changing perceptions of the in integrity terms their police of perceived and the integrity of their evidence to the in their criminal court, and changing perceptions of role relation to the criminal justice system, has influenced the development of the law of confession and the law law illegally These the two areas of on and unfairly obtained evidence. of criminal have historically different in law (5) treatment the evidence received very of criminal be differently by the to treated new regime and continue evidence under established the Police and Criminal Evidence Act. For example, confessions are subject to two in 76 illegally is S. 2(a) (b) obtained evidence subject exclusionary rules and whereas discretionary to only exclusion under S.78. The concerns regarding the two areas of different 'Me there evidence are very similarities as well. although are some justification for examining them together is that both the law on confessions and the law on illegally obtained evidence have been influenced in a major way by perceptions of the police at a judicial and public level. It will be necessary therefore to trace the history of the police at least in broad outline so as to reveal the shifting ideological underpinnings of the existence of police power, which includes the power

2

to gather evidencein criminal investigationsfor use at trial, which have existed since the foundation of Sir Robert Peel'snew metropolitan police in 1829.

The Police in the 19th Century

The Orizins of the Police It is clear from the work of historians of the police (Critchley, Reiner, Emsley (6)) that the new police came into existence after 1829 partly as a result of the concern of the ruling elites with the increased threat of public disorder in the early nineteenth century. There were no doubt other impulses behind the establishment of the new police. (7) The origins and initial purposes of the police lay not in the need for a crime detection investigation for but in body the trained rather and organisation need a non military committed to the maintenance of public order. The modem core role of the police as the state agency charged with special powers and duties to investigate crime and for prepare cases prosecution against offenders was not regarded as a central role of the police until towards the last quarter of the nineteenth century. The 1870s with the creation of the separate Criminal Investigation Department seems to have been the decade when the emphasis of the police role shifted towards detection and investigation of crime and away from the mere preventive patrolling of the streets. (8) the police were not perceived to be intimately connected with criminal investigations for the production of evidence for use in criminal trials then it could be in "citizens that the police were merely uniforms" maintaining maintained plausibly If

the Queen's peace on a full time basis. Lustgarten comments that (9) "The single most important feature of the constitutional have is they the that the status of police position of forces When constable. organised police were established in the nineteenth century, they were grafted onto and clothed with the powers of the traditional office.,"

3

"Me constitutional status of the police in the 19th Century In the nineteenth century the police were not perceived as a core state agency charged with detecting and investigating crime. The theory was, a police officer although holding the office of constable under the Crown, was an independent agent deriving his powers from the common law. (10) The ancient office of Constable was a law the creation of common and therefore the constable derived his powers from the law. The theory was that the police had no powers greater than those of the common from ordinary citizen apart a slightly wider power of arrest: a constable alone could in felony limitations This (11) treason. the arrest casesof suspected or view of of the based constable's powers was on the view, in the words of Lustgarten, " because in legal theory he was a sort of delegate of ... the community, the constable exercised common law powers only. " (12)

Therefore it was plausible to maintain, as Sir James Fitzjames Stephen did amongst others (13), that the police officer was merely a citizen in uniform. This meant that the police merely performed as a full time occupation duties and exercised powers had in Waldron As the which ordinary citizen any case. comments, "It was simply that he did this for a living and was trained at it whereas the ordinary citizen had better things to do." (14) The concept of the police as "citizens in uniform" was still potent enough to play a both Royal Commissions in 1929 1962 the the and on the central part reports of Police. The 1929 Royal Conunission commented, "The police of this country have never been recognised force from law distinct by the traditions as a or either body imposition Despite the general of citizens. of many by duties legislation the police and extraneous on administrative action the principle remains that a policeman in the view of the common law is only a person paid to perform as a matter of duty, acts which if he were so he minded might have done voluntarily. " (15)

The corollary of the police as "citizens in uniform" was that they had no greater derived from the than the common law. Sir James Fitzjames ordinary citizen powers Stephen commented that the police had no greater powers of questioning or evidence4

gathering than the private individual had. (16)

The Development of the Police Investip-ative and Prosecutotial Roles in the mid to late Nineteenth Centu Until the early part of the nineteenth century the Justice of the Peace in his role as investigated examining magistrate crime, made arrests and questioned suspects. However, by 1848 when the Indictable Offences Act was passed this instigatory hearing Devlin had developed into the and as procedure of magistrates a preliminary notes, "The police took over the responsibility for the investigation, the magistrates retained the judicial role. " (17)

However, the situation is rather more complicated than this statement allows. The is division by between distinction Devlin the police and magistracy not so above and investigation in involvement the the the of magistracy of continued clear cut given in form in the granting of search and the their supervisory role of criminal offences detention in the to and period of custodial permitting extensions arrest warrants and interrogation beyond thirty-six hours under PACE. (18) More to the point is that even if the police took over the responsibility for the investigation of offences later in the nineteenth century this should not be taken to investigative that the the then to the that agency criminal police were similar mean investigative be. Crucially that to strategy of central modem police are understood detention, in interrogation (19), the was the modem police of suspects police namely The legitimate the the nineteenth century. end of practice even at not accepted as interrogation, justice confession system may revolve around police modem criminal less but in there the nineteenth century obvious was a much and the guilty plea, between investigations into the the criminal verdict at and police crime connection trial. The nineteenth century prohibition on the police engaging in the questioning of

be arrestedsuspects,can contrastedwith the power of the modem police to arrest and detain for the purposesof interrogation. (20)

5

In his preface to Sir Howard Vincent's police code published in 1882, Hawkins J. (later Lord Brampton) addressedthe police on their duties and commented, "Perhapsthe best maxim for a constableto bear in mind with respectto an accusedpersonis 'keep your eyesand your earsopen and your mouth shud' By silent watchfulness you will hear all you ought to hear. Never act by him by to unfairly a prisoner coaxing word or conduct to divulge anything. If you do you will assuredlybe handled it is likely trial severely at and your evidence be disbelieved. " (21) will A modem commentator has noted of the nineteenth century police practice that, interrogated suspects were not and constables were ... known to testify that the defendant had sought to make duty bade be knew him 'but I to my a statement and silent'. " (22) The nineteenth century dislike of the idea of police interrogation of suspects was

linked defendants to the to obtain confessionsin partly memories of physical abuseof the courts of the seventeenthcentury and earlier. As McConville et al explain, 'I the memories of Star Chamber's practices of compulsion ... for torture the purpose of obtaining confessions contested and the notion of interrogation as an acceptable investigative between incongruity the strategy; police assertions that the in suspect confessed the privacy of the police station and the denial in this the public realm of the courtroom suspect's of incite judicial suspicion of the private production to continued " of evidence. (23) This judicial distaste about the police engaging in pre-trial questioning of the accused

be in be in the accusedcould not even cross-examined understood an era when must his his incompetency in This incompetency due trial. to witness own only as a court Criminal Evidence is Act It in 1898 the the that passage not with of of year. ended difficult to find examples of judicial disapproval of police questioning of suspectsin the law reports. In Rv Gavin and others (1885) Smith J. commented(24) "When a prisoner is in custody the police haveno right to him questions"... ask inadmissible. the so obtained was confession ruled and

6

In Ev Kni g-btand 'Mayre (19051 ChanelI J. said, (25) "When he has taken anyone into custody he ought not ... to question the prisoner. " In Rv Crowe and Myerscough (1917) Sankey J. said, (26) "In my view if a police constable has determined to arrest a he if fact in in is then should person or a person custody in ask no questions which will any way tend to prove the from in his own mouth. " the person custody guilt of

However, judicial disapproval of the police questioning of suspects reflected a more general concern in the nineteenth century to keep police powers in England to a for job, important the minimum necessary part of the a concern which was an ideological underpinning of police legitimacy at that time. Reiner points out that at the outset of the establishment of the police in London in 1829 they faced hostility. (27) Many at both ends of the spectrum of social status considerable public felt that a professional police force was alien to English traditions of civil liberties and freedoms bitter inimical individual to through necessarily rights and won social, in The institution the religious and political conflict police as an preceding centuries. had for Englishmen in the early nineteenth century connotations of continental despotism, especially French despotism. An important way of disarming this hostility to the police was to emphasize that kept to a minimum. Public suspicion of police power continued police powers were throughout most of the nineteenth century, witness for example the uproar in the press Old Bailey in Parliament had the that to the the the trial revelation at police and at The Titley in (228) 1880. the refusal to grant the police a power entrapped abortionist fear interrogation be the understood against of the police as a potential great of must forces despotism, indeed weapon of were, notably the as some continental police French and the Russian. Another aspect of this distrust of police power was that the lawfulness by to the very policies careful scrutinize of adopted courts were chief officers. (29) Sir Travers Humphreys, a High Court judge, commented on the changes he had long his in in barrister judge in career practice as a and experienced a speech at the Inns of Court in 1948, (30)

7

"Sixty years ago confessions to policemen were few ... in far between those which were admitted and and Today the evidence after objection were rarer still. is " the case. reverse Therefore, even in the late nineteenth century few confessions were obtained by the for indeed investigation the to police, whole structure of criminal produce evidence in function. Until around 1870 the majority use court was not unambiguously a police prosecutions were undertaken by private individuals or private associations and not the police. (3 1) These private individuals or associations would of criminal

gather evidence about an offender and prosecute the case in the criminal courts. It was only after 1870 that the police undertook the majority of criminal prosecutions. Hay and Snyder remark, (32) "

by 1879 the private prosecutor often wore blue. " that ...

The explanation for this comment is that when the police did prosecute they did so in theory only as private individuals who happened to have infonnation about lawbreaking by the accused. Indeed, Emsley has commented, (33) "The English system of criminal prosecution and trials entered the twentieth century shot through with paradoxes the prosecution of a criminal offender was still perceived but individual increasingly the right of any such as being dominated by the professional prosecutions were police. " The main point here is that certainly before the 1870s the criminal courts were not dependent on the police to bring offenders before the court. Even if after 1870 the dominate began the process of collecting evidence and prosecuting criminals to police it is submitted that there was no mature view of the criminal courts and the police forming a system or process. Another point illustrating the difference between the nineteenth century police and the full divisional in detectives it 1869 is time that that was only were modem police formed from C. I. D. The 250 1877 that the was with view men. established and only detection being investigation the the with and concerned of offences was police as of being the the to view of police role as concerned with public order subordinate foot Reiner through protection crime regular patrols. pinpoints the maintenance and 1870s as a crucial tun-ling point in the police role, (34)

8

"By the late 1870s, the trend towards increasing specialisation down detection was well entrenched, playing and emphasis on the general role of the general practice uniform constable." Public and official fear of crime in the last quarter of the nineteenth century even led to the toleration of the creation of a secret police force, the Special Branch, in 1887 to counter increasing political

violence

and subversion, especially

from

Irish

revolutionaries.

Public Attitudes to the Police in the 19th Centu. Reference has already been made to the immense hostility on the part of the public towards the establishment of the new police in 1829. This 'legitimacy' problem was only resolved towards the end of the nineteenth century. By the 1890s the English police began to be seen as part of the English genius and also as a symbol of national pride. This is so even if, as revisionist historians of the police such as Brogden note (35) that 'consent' to the police amongst the poor and marginalised has never been as histories "official" the unproblematic as of the English police such as that of C. Reith suggested. (36) Emsley in his social and political history of the English police, quotes various sources to illustrate the esteem in which the English police were held by the 1890s. Emsley comments, (37) "The Bobby was now firmly established as part of the British constitution. According to John Bums, a former Labour activist but by 1900 an Independent Radical M. P., the City of London and Tbe Metropolitan Police were 'the best police force in the world'. " It can be argued that part of the success in achieving widespread public acceptance of the police was due to skilful propaganda on the part of those who favoured the new Leigh Reiner (38) As and note, police.

"Clearly central to the acceptanceof the force by the belief the that the police were the majority of public was subordinateto the rule of law and that they lacked either legal powers or the coercive capacity to police other than by the consentof the populace."

9

Hence a lack of a power to question suspects in custody. In order to secure legitimacy for the police a crucial element in the propaganda campaign was the concept of the It long had in This "citizen caretaker or shelf-life. a remarkably uniform". concept was mentioned with approval as late as 1973 in Sir Robert MaWs highly publicised Dimbleby Lecture. (39)

Judicial Attitudes to Police Evidence in the Nineteenth Centu The judiciary, at least in the early part of the nýineteenthcentury, tended to share public scepticism about the dangers posed by the new police. J. D. Heydon has commented that (40), "T'he judges tended to distrust the early police as novelties, indeed they continued to do so throughout the nineteenth century. " The hostile attitude of the nineteenth century judiciary towards the practice of police interrogation of suspects was one manifestation of that distrust. Judicial dislike of interrogation by the police went beyond judicial exhortation to the police not to indulge in the practice so as to actually include the exclusion of confessions by MacDermott in his Lord to the made noted allegedly police. address to the suspects Bentham Club in 1968 with regard to the admissibility of answers put to questions to in (41) custody, a suspect "'Me attitude of the judges during the latter part of the have to veered towards excluding nineteenth century seems discretion. in " the their such answers exercise of

It is important to make clear that the exclusion of confessions here was independent law the voluntariness rule which was established at the end of the common of Chapters 2 3 This judicial the see voluntariness and on rule. eighteenth century: by from in the to the obtained questioning confessions police of suspects attitude had interrogation investigative to effect on an police attitudes as an strategy custody into lasted beyond First World War. As Royal the twentieth the the century, which Conunission on Criminal Procedure (198 1) noted, (42)

10

"The Royal Comn-lission on Police Power and Procedure in 1929 said that the great majority of police forces followed Lord Brampton's advice as a matter of fundamental principle it desirable that to avoid any questioning was and concluded " in custody. at all of persons actually

The sceptical commentsof Cave J. about the authenticity of confessionsobtained by the police from the private questioning of suspectsis a further example of judicial distrust of the police in the nineteenthcentury. In Rv Thompson(1893) (43) CaveJ., an experiencedjudge, commentedthat he always distrustsconfessionsallegedly made to the police by suspects: seeChapter4 of this thesis. It is submitted that judicial attitudes to the police profoundly affected the development of the common law doctrine that improperly obtained or illegally freely late is In to trial. the obtained evidence mid nineteenth century admissible at the common law rule was laid down in decisions such as Rv Leatham (1861) and Jones v Owen (1870) (44). Insulated from the police as an institution, the criminal , judiciary in the nineteenth century could take the view that all that mattered with it illegally improperly by to the or regard evidence obtained police was whether was facts in issue The judges to the the trial. criminal relevant at were reluctant to admit by because fear the police of a of manufactured evidence and a confessions obtairied judicial dislike about the police engaging in pre-trial cross-examination of the improperly However, the reliability of obtained real evidence, such as stolen accused. by illegal is issue defence is that the rarely claim an search, at unless goods obtained the evidence was 'planted' by police, a relatively common defence to drugs charges in the modem courts. Distanced from the police as an institution because of a lack of a perceived unity to the criminal process the nineteenth century judiciary could admit illegally or improperly obtained evidence without concern for any potential damage to their own judicial integrity or the legitimacy or fairness of the criminal trial. In the case of Jones v Owen (1870) the judge dismissed completely any suggestion that because the discovered by illegal had been illegal an search of the suspect poaching evidence of by a police officer that this could affect the admissibility of the evidence. In the Rv Leatham Crompton J. 6 (18 1) commented, earlier case of "It matters not how you get it, if you steal it even it would be admissible in evidence."

11

As Professor Dennis points out (45) "The inspiration for this common law position came largely from civil cases where the court has traditionally conceived its function as that of doing justice between the parties From to the to the according evidence parties choose present. this standpoint it is immaterial how the parties came by this evidence."

The above judicial pronouncement by Crompton J. on-iits to make a distinction between evidence obtained by the illegality of the private citizen and evidence by has been illegality in Reference the the obtained already made of police officer. this thesis to the relative insulation of the criminal courts from the police in the nineteenth century, however that perhaps also underlies Crompton J.'s omission to distinguish between the police officer and the private citizen in obtaining evidence illegally is how the police were viewed in ideological terms in the nineteenth century. This was as "citizens in uniform" rather than as a core state agency that we understand the modem police to be. The significance of the constable or "citizen in w-ifform" is that judges in the nineteenth century could maintain that illegal or improper conduct in irrelevant the to the question of of police gathering non confession evidence was the fairness of the criminal trial and that therefore there was no good reason not to be because into This taken trial. admit such evidence view could evidence obtained illegally by the police constable was no different in status from evidence obtained by the illegality of a private citizen. If the police were "citizens in unifon-n" then for the by in differently have the to treated police criminal courts a manner evidence obtained from evidence obtained by a private citizen would have seemed illogical. 'Mis observation helps to explain the significance of Zuckerman's insight that, (46) "Criminal judges last century may have been right to divorce felt from illegality if they that the trial process admissibdity be from investigation detached to the police as was so insulated from any illegalities that occurred in the police " station. judges in the nineteenth century obviously felt that they had no for in before by the them way non which confession evidence presented responsibility been had the police obtained. However, as referred to earlier, with regard to Criminal

judiciary how the that evidence were very evidence much concerned with confession had been obtained. The main rule governing the admissibility of confessions was the law 'voluntariness' rule. common 12

This was not a rule formulated so as to control the actions of the police in the interrogation of suspects. The police force date from 1829 whereas the exclusionary rule had its origins in the late eighteenth century. Even if in the twentieth century pre PACE, the voluntariness rule could be interpreted so as providing some limits on interrogation be i. inducements threats to police methods, e. no offered to the ought or suspect by the police, the rule left entirely open whole areas regarding the limits of idea in interrogation. For the permissible police conduct of outlawing example, "oppression" in interrogation was not incorporated into the exclusionary rule until Callis v Gunn,in October 1963. (47)

The Police in the Twentieth Century up to PACE

Judicial and Official Attitudes to Interroeations and Confessions obtained throueh

Questioninein the earlv 20th centurv

Accompanying the increasing legitimacy of the English police in society came a judicial by toward the the attitude admissibility of confessions obtained changing by Sumner Lord 1914 that could comment that the police questioning of suspects, so trend of the judicial discretion was to admit rather than to exclude such confessions (48). Increasing public and judicial respect for the police must have played a part in this change in judicial attitudes towards the admissibility of confessions obtained by for into This trend admitting confessions evidence continued as pre trial questioning. legitimacy in the 1940s and 1950s. "Golden Age"their the the police entered of However, the interrogation of suspects was still officially frowned upon in the early twentieth century. The 1929 Royal Commission on the Police reported that the large forces limited have been to the to city such as questioning of suspects seemed by but Report, Police 1929 Metropolitan the this the whose practice was criticized Commissioners wished for a blanket ban on police interrogation. (49)

13

The Growth of Police Power Apart from the voluntariness rule there was also as a check on police interrogations, the Judges' Rules. Tbese were first issued in 1906 and 1912 by the Kings Bench Division to the police. This perhaps illustrates that even in 1906 the view of the policeman as "citizen in uniform" could not be consistently maintained and that the police were sufficiently differentiated from citizens in their powers and duties so as to require additional guidance on what was and what was not acceptable practice towards suspects. Arguably the 1906 issue of the Judges' Rules was the first judicial recognition that the police were different from ordinary citizens. However, a close examination of the original Judges' Rules of 1912 reveals that they little detention in the the offer very way of regulation of and questioning of suspects by the police. The Judges' Rules of 1912 are limited to such matters as when the be caution should administered to the suspect and the terms of the caution. Contemporaneously with the issue of the Judges' Rules came regulations to the police from the Home Office on the conduct of identification parades. 'Mese regulations followed the Beck case (1907) (50), a notorious case of miscarriage of justice based identification This on repeatedly unreliable evidence. again suggests that whatever the official rhetoric, the police were regarded as performing special duties requiring holding The identification is parades special guidance. of a classic example of a function from is a police separate what the ordinary power and procedure which is citizen capable of performing. There was therefore a contradiction in official discourse in both claiming the police as issuing in and guidance to the police on the correct exercise of their unifonn citizens special powers. However, the view of the police as "citizens in uniform" was still potent enough to Yet Pofice Royal Commissions in 1). 1929 1962 (5 the the on and play a central part fact in if in ideology Leigh Reiner theory the that point not of the out and as let in in in "citizen 1929 1962 (52), alone uniform" was vitiated policeman or

by the accretion of power basedon bureaucratic been it has technology training organisation, and and formal by undern-finedsince a steadyaccretionof powers." As Lustgarten points out, special statutory powers denied to the general public had 14

begun to be created after organised police forces had gained some degree of public acceptance. This process started with the Metropolitan Police Act in 1839 which granted policemen wider powers of search and arrest in particular circumstances. (53) The process continued throughout the nineteenth century and into the twentieth century with, for example, the passage of The Misuse of Drugs Act 1971 which created special powers for the police to stop and search for illegal substances. Lustgarten comments that, (54) " the logical culmination has been reached in the 1984 ... Act with its wide powers for constables throughout the intimate to country arrest, search, seize property, and conduct body searches. Legally speaking, the constable is indeed now 'a man apart' from other citizens. "

It should be pointed out that it is possible to exaggerate the potency of the constable as //citizen in uniform" in the pre PACE era. The concept of policemen as "citizens in his dissent in by Goodhart inaccurate Professor to the 1962 uniform" was attacked as Royal Commission. Goodhart's point was that the police were given extra powers to fulfil their duties to investigate crime and that to say a constable was a "citizen in However, as will be seen uniform" was to obscure this important social fact. (55) later in this chapter, the myth of the constable as "citizen in uniform" was only finally laid to rest by the R. C.C.P. Report in 1981. Contrasted with the official maintenance of the "citizen in uniform" concept came an increase in and toleration of use by the police of the interrogation of suspects. The 1964 change to the Judges' Rules seems to have been the first official in the practice of police questioning of suspects already their custody authorization of but it is clear that the 1964 change merely recognised what was already widespread J. C. Smith in Chapter 2 the this thesis the comments of of and police practice: see 1960 Criminal Law Review reported in Chapter 2. The reasons for the growth of interrogation in the police armoury against crime are interrogation in factor in An the the was the removal use of growth obvious complex. first This disapproval interrogation was manifested of with as a practice. of official into judicial in increasing to evidence obtained willingness accept confessions all through interrogation, see for example the decision in Rv May (1952), (56). Secondly it was manifested in the express authorization given to the questioning of suspects in by Rule I 1964 Judges' Rules. the of revised custody

15

This changein official attitudes towards custodial interrogation may itself have been driven by fears of rising crime and a desire not to hamper police efforts in investigating crime. Certainly by 1968 Lord MacDermott (57) commented that undue attachment by the law to the suspects' privilege against self-incrimination was hampering the police in their fight against rising crime rates. The growth in the use of interrogation post Second World War does match a considerable growth in the crime

rates, especially since the mid 1950s. By 1957 over half a million crimes were committed in Britain annually and as one commentatornotes,(58) /I

the shortage of police manpower to cope with this crisis in crime was a serious cause for concem in WUtehall. "

However, worse was to come for in the post war period the great increase in the crime hundred from figure late By 1950s. 1960 the the rate occurred was over seven crime thousand crimes annually, which represented a considerable growth from the 1955 figure of over four hundred thousand. Traditionally the English police have been important in in "low the traditional this was an element portrayed as numbers", English police model. In 1938 the ratio of police to population was 1:689 which as Reiner points out, (59) // would have put England and Wales relatively low on - international the scale ... thus England and Wales seem to have been comparatively thinly policed before the Second World War. " This was fine in a society of the 1930s that can be characterized as relatively "crime in crime referred to from the late 1950s was not free". However., the great growth Z-:) by increase in by the number of police officers and although a corresponding matched 1962 the ratio of police to public had improved to 1:581 the figure was still industrial France low in to or other countries such as comparison comparatively Germany. In the light of a rapidly rising crime rate from the late 1950s and official concern but increase to substantially police no significant resources about police effectiveness have be if heavy it to the to recourse police started not surprising would manpower, feature One important interrogation this to of crisis. the of suspects as a response is it investigative interrogation that of criminal suspects as an can method custodial in the shape of confessions as evidence and general criminal results good produce intelligence efficiently involving only a few hours of a detective's time and involving

16

few detectives. two as as one or It may be the casethat the heavy reliance on interrogation manifest by the time of the 1981 Royal Commission made good sense from an efficient employment of manpower resourcesperspective. It can also be pointed out that heavy Teliance on interrogation as a crime fighting tool appearsto be the casein some other advanced liberal democracies,Japanand the U. S.A. being notable examplesof counuies where interrogation by police is heavily utilized. (60) However, whaher police interrogation is utilized in a particular country is going to be crucially determined by the form of criminal procedure adopted there. It may be that in certain countries interrogation of suspectsis primarily a judicial rather than a police function, as in India. By virtue of the Indian Evidence Act 1872 police evidence of anything said during interrogation, by the suspect before the suspect was taken before the magistrate, is inadmissible evidence. (61) Given the high evidential value of confessionsin many jurisdictions it is not surprising that police forces worldwide interrogation view as a quick and cheaproute to conviction. In England serious resourcing needs may in addition have driven the trend towards interrogation as the central investigative strategy. Sir Robert Mark has Commented that in the post Second World War era, (62) "Criminal intelligence and targeting criminals were both born from the refusal of successive governments, Conservative fulfil Labour, the to to and allow police adequateresources their primary function of prevention. "

The interrogation of suspects as routine may well have followed ft's post war development in the increased use of intelligence and informers to combat cirime. The identify here informer intelligence is be to that used criminals may not crucial point i. informer be the word of proof of guilt, e. an may admissible evidence as inadmissible as hearsay evidence. However, a confession obtained from the targeted interrogation through may well secure a conviction either through a guilty crinlinal has John May his Sir in this on phenomenon conu-nented plea or guilty verdict. Report on The Guildford Four case (63), "Where the police feel certain that they have indeed basis the the of what arrested right people perhaps on is regarded as reliable inteWgence but have little or no be there to their may admissible evidence prove guilt, " to temptation to those persons confess. a strong persuade

17

The growth of subjectivist doctrines in the criminal law post Second World War may have also stimulated the drive towards reliance on interrogation as a useful means of providing clear evidence of a subjective mental element required in many offences, e.g. offences under The Offences Against the Persons Act 1861 as interpreted in Rv Cunningham (1957) (64). Section 8 of the Criminal Justice Act 1967 is also significant in this regard. (65) T'he adversarial system itself with rules of evidence erecting relatively high evidentiary barriers to conviction may also induce a reliance by the police. on confession evidence system, that, (66)

Damaska has commented on the adversary

" there is a greater divergence between what the ... police actually know and what can be introduced as evidence at trial ..." than in inquisitorial systems of trial. Strict exclusionary rules prohibiting hearsay or the adduction of previous convictions save in "exceptional" circumstances are good how the police may have good grounds to believe in the guilt of an examples of individual but lack the admissible evidence to prove it. Recourse to interrogation to obtain a confession may therefore be the only way to close that gap. Moreover, if it most detective work is not detection but the ... transformation of an incident into a case and an individual into a defendant by the collection, categorization and presentation of evidence ... " then

" interrogation is an especially important site for the ... legalization of accounts " (67) ...

through e.g. the use of legal closure questions which invite the suspect to provide information but actually force information into a legally significant category in the hope that the suspect adopts it. At the present the interrogation of suspects is still viewed as the central investigative Confessions interrogation through the police. obtained are seen as vital to strategy of the efficient worldng of the modem criminal justice system. Zander has commented that, (68)

" the criminal justice systemwould grind to a halt if ... confessionscould not be utilised by the prosecution." The Chief Inspector of Constabulary, Sir John Woodcock, has less dramatically than

18

Zander referred to confessions as "a vital tool of justice". (69) Pre PACE studies estimated that the proportion of suspects interrogated by the police who made admissions was over 60% (Softley and Irving, both studies in 1980) (70). Since PACE was introduced there seems to have been a small decline in the Moston figure high; but is the percentage of suspects who make confessions and still StephensoiYsstudy in 1992 (71) found a rate of 59%. It should be noted that very many of these suspects plead guilty at trial, over 90% according to some studies. McConville and Baldwin in their research for the RCCP in 1981 found that for 20% in of all contested cases confession evidence assumes a vital role only about heard in Crown Court. (72) However, the true significance of confession the cases it is in be the realised that the evidence criminal process can only appreciated when inherent is It the to making of a confession is very often a prelude a guilty plea. dispositive nature of a confession that makes that form of evidence so attractive to the important lead this to an awareness of the crucial police; observation should found detain in 37 interrogate S. the to suspects now significance of police power and has Dixon PACE. As of written, (73) "From a legalistic perspective, the central purpose of police detain for to powers questioning is the collection of evidence for potential use in court. A more socially realistic division between investigative that the perspective suggests functions judicial is too neat. Criminal justice systems and for depend high their which on very rates of guilty pleas functioning have transferred the crucial site of effective determination from the court to the police station. When determined by a confession then a cases are effectively if in detain is in to power and question more practice not law than an investigative power. " McConville and Baldwin in 1981 (74) found that over 90% of defendants who made in London in Birmingham 76% the to and plead guilty at police written confessions during for RCCJ McConville's In those the trial. of who confessed custodial study interrogation where the outcome of the case is known, 93.6% pleaded guilty. (75) Therefore there can be little doubt about the close correspondencebetween confession be lost lawyers fact is This to on police officers, unlikely evidence and conviction. defendants. and It should be pointed out that the requirements of the Police and Criminal Evidence Act have made the obtaining of confessions more difficult than under the Judges' Rules. This has led, according to the police service, to a decreased reliance on interrogation in recent years fuelled as well by public concern over the role of

19

unreliable confession evidence in major miscarriage of justice cases between 19891992. (76) As one of the Chief Constables interviewed by Reiner commented4(77) "PACE has made us far more professional in our ... We have to work harder to get other evidence approach. rather than relying simply on what we can get the defendant to confess to. "

However, as noted earlier, some studies show that the confessionrate from suspects remains remarkably similar to the pre PACE era. It is of course, in the best interest of the police to portray themselves as having in become hence have investigation their to to changed approach more and "professional". (78) Yet although the police are now more careful in the conduct of criminal investigations than the crude conviction-by-confession strategy of the pre PACE era, interrogation still occupies a central place in police investigative strategy justice dependent interrogate the the to and criminal system remains on police power so as to precipitate guilty pleas and guilty verdicts through confessions.

Public Attitudes to the Police up to the 1970s and the Reality of Policin It has already been noted that it is only from 1963 that the voluntariness exclusionary interrogation. is incorporated This the notion of outlawing oppressive methods of rule held by in linked the the courts to the police were unjustified esteem which possibly Emsley Even least (79, ) 1960s. then the the comments, as until and public at

" disquiet about aspectsof police behaviour in the 1960s ... " remainedmuted. The point is that if the police were to be generally trusted to behave with propriety for have then there a rule outlawing towards suspects seemedno pressing need would did interrogation. That behave 1960s the sometimes pre police oppressive methods of figure by less Sir Robeirt is Mark, brutality than to towards a suspects no attested with former Metropolitan Police Commissioner, in his autobiography "In the Office of Constable". his account of policing in 1940s Manchester. Mark writes, for example, (80)

20

"Before and immediately after the War, there was a willinghardened by the the to use violence against ness police believe holds indeed. I " criminal which now rare Brogden in his oral history of policing in Liverpool in the inter-war years corroborates the view of a willingness by the police to use violence at that time, "There is some evidence that the history of policing in England Wales fist to the than and contains much more resort stick and is recognized in the orthodox accounts. The stick in partic-ulaT backed up by the practical invisibility of the night beat was a devise to save on unpaid overtime The policeman useful ... deal beat his to avoid the, would employ a good of violence on for tiresome court appearances A degree of violence need ... be behaviour to types might also sufficient control certain of for which conviction was difficult or unlikely. " Brogden makes an authoritative statement on the issue of police violence in his study, (81) "Rank-and-file police officers in the inter-war years were no angels in the way they exercised authority on behalf of a smug urban middle class over the people relegated to the bottom of the social pile. " Further corroboration of this analysis is provided by another oral history of'policing in England and Wales, Weinberger's study of English police in the period 1930S- 1960s. The advantage of Weinberger's study over Brogden's is that it does not seek to limit Z-its inquiry to a particular city but seeks to give a rather more general impression of Brogden's behaviour than time over a wider span and attitudes police study. Weinberger comments, "The two main ways of getting evidence illegally were fabrication. Both were routinely used and violence or by its Strong to respondents ... arm openly admitted for the softening up the norm whether methods were for " for exacting revenge. prisoner, gaining confessions or

Weinbergerconunentsftuther, "Once in the station and despite the philosophy of the hit do it that'if you a prisoner you should police service become integral the an outside station' violence could " the to means part of gain confessions.

21

The police were able to utilize and cover up such behaviour which would likely be exposed today, because as Weinberger notes, (82)

"The period probably brought to a peak the broad coverage and reachof the police authority in this country - an authority that is increasingly coming under challengetoday,-" With a high level of authority comes respect and deference from those under that authority and also crucially high credibility with the judicial authorities in any dispute between police and citizen or to police behaviour. Ibe police were able to maintain their general public image of unimpeachable integrity because when the police stooped to the use of unreasonable violence it was generally restricted to the most powerless and socially marginal groups in society who tend to lack a public- voice, or who until fairly recently have tended to be deferential to those in authority, including the police. ]Fhoselow status socio-econornic groups therefore, often in the pre 1970s lacked bring the to the the issue of police violence or corruption to era, ability or will The force hardened likewise public notice. use of excessive against criminals cotdd be engaged in with a certain amount of impunity given the secrecy of the police lack the station and of personal credibility of those making a complaint. It is important to point out that although the recent spate of miscarriages of justice, 1989 - 1992, has brought to public attention the problems of police abuse ef suspects fabrication informed the these of and evidence, same concerns also public concern about the police especially in the 1970s but also in the 1960s, although not in so dramatic a fashion as the post 1989 era. The fabrication of evidence ifomed the background of the notorious Detective Challenor affair in the early 1960s and the issue of the mistreatment of suspects was the concern behind the Sheffield "rhinowhip" inquiry which also occurred in the early 1960s. (83) How-ever, these by informed "exceptional" treated opinion as scandals and the. general cases were For 1970s. the the early police persisted until c-xarnple, the untarnished reputation of C.L. R. C. in 1972 commented that the Sheffield and Challenor caseswere the result of force incidents in "black that the such sheep" police and weTe a rare a small number of occurrence. (84) However, from the early 1970s the problem of police deviance began to be perceived institutional deeper Reiner in 1989 problem. a article commented on this as a much

(85) phenomenon,

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"During the early 1970s concern and controversy about issues, increased notably police policing over a variety of handling the the treatment of powers and of suspects, disorder as well as the flurry of corruption revelations issues Yard". All "fall Scotland these the signalling of of were of course present even in the 'consensus'period (1950s, 1960s). But now the critical theme among journalists and became the systematic sources of police deviance academics function liberties threats to and civil of police organisation as a individualistic the the transcending and nature of policing "one bad apple" approach." The Confait case concerning the wrongful imprisomnent of three youths for manslaughter based on their false confessions and the Fisher Report of 1977 on the case crystallized civil liberties concerns about the police treatment of suspects: see on this Reiner (86). It is important to note this public perception of systematic police deviance in the 1970s, for the Police and Criminal Evidence Act 1984 can be viewed from one perspective as a concerted legislative attempt to restore public confidence in the proper exercise of police powers such as stop and search and interrogation. The need for public confidence to be restored in the proper exercise of police powers was dramatically highlighted by the serious disorder which affected several larger English been in These have 198 1. the cities summer of riots characterized by Brogden as "anti-police riots" (87) and while social and economic factors were obviously an ingredient in the outbreak of disorder, a crucial spark was the excessive use of stop during Metropolitan in Brixton Police operation the and search powers, especially "Swamp 81". The Scan-nanInquiry Report clearly saw policing mistakes as a crucial factor sparking the disorders. (88) The riots higWighted the crucial connection between the maintenance of civil order and the proper exercise of police powers investigation the of crime. concerning

Judicial Attitudes to Police Evidence in the Twentieth Century before PACE The revised Judges' Rules of 1964 did offer more detailed regulation of the interrogation of suspects than the earlier versions of the Rules, but still far less than Scannan for by Codes Practice. Lord PACE the that provided and of remarked in Rv Sang

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"The Judges' Rules are not a judicial control of police interrogation but notice that if certain steps are not taken be excluded at certain evidence otherwise admissible may trial. " (89) There was a judicial discretion recognized at common law, Rv Voisin (1918) (90) to exclude a confession obtained in breach of the Judges' Rules but it was rarely Judges exercised. at common law would very often admit a confession obtained by deliberate breach of the Judges' Rules. Judicial suspicions of the police which existed throughout the nineteenth century and which sometimes led to the exclusion of because the police questioned a suspect in custody, seem confession evidence merely to have evaporated by the time of the 1929 Royal Commission on the Police. The only sanction for breach of the Judges' Rules given that exclusion of a confession rarely occurred (see Pattenden's remark "Since 1945 non-observance of the Rules has in most reported cases been condoned" (91)) was a judicial rebuke to the police for Rules. In Rv Mills and Lemon (1947) the Lord Chief Justice said, the violating "T'he sooner the Bristol police study, learn and abide by the Judges' Rules the better. " (92) This suggests that at least with regard to the tenns of the Judges' Rules the judiciary how investigations. trial the were not entirely unconcerned at with police conducted However, as has been noted, this concern rarely translated into discretionary breach in Judges' Rules. the exclusion of confessions obtained of There remained one more discretionary power to exclude evidence obtained in an improper manner by the police. Ms was the rarely exercised "fairness to the first by discretion in Kuruma Lord Chief Justice (1955) (93) recognized yR accused" Goddard. However, this discretion was tightly circumscribed so as to only exclude from by the the the after commission of offence suspect and obtained evidence Rv Sang (1979). the privilege against self-incrimination: see analogy with There were only two instances of this common law discretion being exercised at Court Rv (1962) (95), level, Rv Pa3Me (1963) (94) and although we cannot appellate know of the true figure of first instance uses of this discretion since these cases would not come to appeal and therefore public notice.

Given the habitual non-exerciseof the discretion to exclude confessionsobtained in breach of the Judges' Rules and the limitations of the "fairness to the accused" discretion, the only effective legal control of police methods in interrogation was the 24

in Sumner Lord by form in The the modem test voluntariness rule. was enunciated Ibrahim v The King (1914) (96). To be admissible, confessions however convincing, beyond have been in the that the must sense prosecution must prove voluntary reasonable doubt, "That it has not been obtained from him by fear of hope held prejudice or out of advantage exercised or by a person in authority. " The concept of "oppression" was added by a dicta in Callis v Gunn (1963), (97) and in in Rv Prager 1972 (98). only confirmed With regard to the main part of the exclusionary rule, namely 'threats' and 'inducements' the courts became overly concerned with the technicalities of the formula. decision in This DPP v House Lords' the voluntariness persisted until of , Ping Lin (1976) (99) which relaxed the technicalities of the rule. 'Me technicalities its in the that the of rule meant certain cases exclusion of a confession where had been doubt, but because in it "form of words" reliability was not was excluded a being by The by interrogator the the to the made suspect. confession prior used in law led judge, Winn L. J. Rv the one voluntariness rule at common rigours of Northam to comment, "The criminal classesare only too well aware of their hands in immunity " the the police. of position of virtual (100) Yet given that the Judges' Rules on contemporaneous note taking and access to legal by by the an exclusionary police and not supported advice were often abrogated discretion judge, by the the the suspect was often at a structural of use of remedy disadvantage in claiming that his confession was "involuntary" for the judge often had it independent in interrogation independent to the witness nor an order to record of no decide properly on whether a threat or inducement had been made.

The suspect was often unable to claim the protection of the voluntariness rule in judiciary because the the the usual non observance of were comphcit precisely Judges'Rules by the police. In court it was often merely the police account of what interrogation against the suspect's account of what transpired at transpired at interrogation, i. e. on the question of whether any threat or inducementhad been made by the police or whether the police had behavedoppressively. Given the esteemand by held judges, juries in their the was magistrates police and evidence and trust which

25

little least before 1970s the the then chance of successfully at suspect stood in if interrogation the a the were police contradicting a perjured police account of Report in Eleventh in The CLRC their to particular case prepared commit pedury. 1972 recognized that, (101)

"... if the accusedallegesthat the evidenceagainsthim is perjured he is not likely to be believed, moreoverthe mere making of the allegation by the accusedin giving evidence facts his damaging to to the enables prosecution elicit relating " previous record. (On this point seeChapter4 of Us thesis) It has to be recognized that up to the 1970s the police were accepted as much more from defendants. be drawn low than tended to credible witnesses most who status ) drawn Russell have Box socio-economic groups. and attention to the "discreditability" of most of those who allege mistreatment at the hands of the police. The police could allege at court a variety of reasons, e.g. revenge against the police or mental instability as to why the accused 'made up' his allegations of police independent interrogation. The in in the the misbehaviour court., absenceof evidence (102)

would normally accept the police account. The main obstacle to exposing police deviance is the conflict of evidence between police and suspect over what did actually legitimacy disadvantage because is 'Me the of accorded occur. suspect at a structural to the police account of events due to the fact that they are the police, the visible low lawful Reiner treatment that police of status points out authority. symbols of by "regularly abuse of powers, excessive characterised socio-economic groups was force and corruption" but that nonetheless until relatively recently the English police image in benign the eyes of the established opinion their to preserve were able making classes.(103) From a certain perspective it was perfectly natural for trial judges and magistrates to PACE liberal in In in the the trust pre era. a evidence of policemen place great democratic state it is normally possible to make the reasonable assumption that honestly. The duties their the courts competently and state will undertake officers of have done job be their that the the to police properly. assumption able act on should However, it is certainly possible to argue that the English police, certainly in the 1970s, often took advantage of the trust placed in them to give peýured evidence. They were able to do this because of the cloak of secrecy surrounding the police faith integrity Blind in law interrogation the the process. of enforcement station and dangerous is for democratic liberal in therefore the state a substitute open a officers 26

force in This is the police and reliable exercise of police powers. especially so when England have a particular mandate in an adversarial system to construct cases against suspects. This mandate is reinforced by a powerful police culture which views the conviction of people believed to be criminals by the police as the central police task. This contrasts with a view of the police role as investigating directly the truth of the suspect's actual involvement in criminal activity. As Sir Henry Fisher (104) pointed out, the police do not see it as their duty to follow up lines of inquiry which will In Confait the the exonerate suspect. case the police attempted to negative an alibi light in than to the the rather analyze case of countervailing evidence. The creation of the Crown Prosecution Service in 1985 may have had a tempering effect in this regard on the police since the police no longer bear the responsibility of in prosecuting cases court. McConville and Baldwin commented in 1981, "It is the responsibility for prosecution that requires the police to present the strongest possible case and to ignore doubts they may entertain." (105) A. A. S. Zuckerman notes that due to the attitude of the courts with reeard to breaches Rules, Judges' the result was, the of " that the courts forwent adequate supervision of ... by large left suspectsto the mercy interrogation and and " the of police. (106) The lack of proper regulation of the police-suspect encounter before PACE in terms discretion lack the to exclude evidence the non-exercise of of statutory rules and of a how legitimacy ideological be in to the and underpinning of police attributed can part integrity in the tenns the the criminal courts viewed of their evidence and of potice the relationship of the police to the court system. It is now well established that by the 1950s the police enjoyed almost universal public (107) Reiner As out, points esteem and support. " by the 1950s the police had become not merely accepted ... but lionized by the broad spectrum of opinion. In no other force been has the so much a symbol of police country national pride. " if the police were to be trusted to behave fairly towards suspects then there vvasno in detailed for the the police station. encounter regulation of police-suspect need 27

Similarly, if police evidence was to be trusted then there was no pressing need to exclude confession evidence which had not been properly documented and authenticated, as required by the Judges' Rules. Police non-observance of the Judges' Rules or access to legal advice for the suspect would similarly not call into question the fairness of the interrogation for the police could be trusted to behave fairly and the confession could consequently be admitted into evidence. This position began to change somewhat in the 1970s, when some trial judges did exclude confession evidence which had been obtained in breach of the provision on a suspect's access to legal advice (see Chapter 5 on these examples) but there is little evidence of this pre the 1970s. Indeed in 1967 in Rv Northarn Winn L. J. commented that the English police, 11 are now to be trusted in almost every single case, to ... behave with complete fairness towards those who come into their hands or from whom they are seeking information. " (108) The reality seems to have been different. Paul Condon, the current Metropolitan Police Commissioner,, described the police service he joined in 1967 as., " fairly brutal, poorly trained and poorly educated ... despite its rosy image." (109) The 'rosy image' was one shared by many judges. Indeed at one time the 'rosy image' by defence Hodgson, High judge Sir Derek Court the many counsel. was shared even P. C. Blakelock the tried murder trial commented.) who "When I started at the bar in the 1940s, it simply didn't head be that confessions might unreliable. enter one's As defence counsel we didn't think of going into how they might have been obtained." (110) This perceived integrity of the police was well entrenched by the 1950s, although in For H. Two War World the the pre example, situation was not so clear cut. years Montgomery Hyde in his biography of Sir Norman Birkett (111) commented, "In the summer of 1928 there occurred a sensational official by English Metropolitan into the methods used enquiry For individuals. in interrogating some time private police there had been complaints that officers from Scotland Yard degree' 'third tactics and these complaints were employing head in to the Savidge Inquiry. " came a

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PACE and its aftermath 'Me Emergence of PACE As referred to before in this thesis, the myth of the constable as 'citizen in uniform' was only finally laid to rest by the RCCP in 1981. It was not a harn-fless myth thoug14 for the concept of constable as 'citizen in uniform' must be taken into account in considering the reasons for the lack of detailed and enforced regulation of interrogations before PACE. As Dixon has written, "The ideology of constables as'citizens in uniform'has been important both as a legitimating device and as an impediment to proper consideration of the nature of " police powers. (1121) The constable as 'citizen in uniform' myth concealed the true nature of the growth of police power, pre PACE, and the consequential problem of regulating that power. One method of regulating the increase of police powers is through the discretionary by Dixon As those exclusion of evidence obtained a misuse of powers. points out, the willingness of the judiciary to exclude evidence from the criminal trial is a crucial way of controlling police power. (113) "Police powers can be increased by judicial inaction as well If judges consistently refuse to exclude evidence as action. has in then that practice obtained some unlawful way a judicial imprimatur, which is hard to distinguish from it is While true to say that the practice is not authorization. fully legalized in the sense that it may found a civil claim, this possibility is usually not significant. " The RCCP noted, " the notion of the police officer as the citizen in blue ... is do do things that to should all citizens contains who paid far from Society it is But truth. reality. expects, an element of indeed it places a duty upon the police to detect and investigate detected before bring if to offenders crimes and appropriate the courts. Any rules to regulate investigation must be so framed that they enable the police to discharge their duty but " (114) the the that properly protected. suspect are rights of ensure

As Reiner and Leigh note, (115)

29

"The RCCP and PACE constitute a significant watershed formal in the powers consolidating and clarifying changes Second had built the and concrete practice which up since World War, separating the police officer from the ordinary The ideological is based citizen. new settlement on a new rationale. " The Police and Criminal Evidence Act which grew out of the RCCP report is therefore built upon a new ideological rationale for the police. PACE was an attempt to balance the tension between police effectiveness and individual liberty. One feature PACE its institutionalization detention for crucial of was of a system of by the police. This was balanced by the introduction of greater questioning for the suspect, especially access to free legal advice put on a statutory protections footing. It is now recognized that the police do have powers significantly different from the citizen, and this is rightly so given the special responsibility upon the police to investigate and detect crime. Although the constitutional form of the independent constable remains, the police are in effect the official investigation of crime.

state agency for the

Not only did the RCCP recognise that the police were fundamentally different in from but be breakdown RCCP the the the report citizen must viewed against powers in the public concerns about the integrity of the police which occurred from the late 1960s and increased in the 1970s. As Reiner and Leigh note, (116)

"The broad backgroundfor understandingthe emergence fraught is increasingly PACE the and controversyof ridden political and social context of policing since the late 1950sbut especiallysince the early 1970s." Reiner has commentedon this situation, (117) "During the 1970s the elements making for the legitin-lization became in Britain the unravelled and reversed. police of The series of revelations of police deviance, both in the sense law the rule of undern-dned of corruption and other violations of the image of the police as professional symbols of legal " authority. To take one example of this change in public attitudes to the police and their integrity, before late became heard 1960s, "verballing" issue the rarely of the a major issue in of in i. 1970s, defendant the the the trials e. police would allege and would many criminal 30

deny the existence of an oral confession allegedly made by the defendant to the police during the pre trial police interrogation: on this issue see Chapter 4 of this thesis. The "verballing"

informed RCCPs (118) the and the report problem clearly subsequent PACE scheme for tape-recording of confessions in the interrogation room and authentication scheme for confessions made to the police elsewhere.

Public Attitudes to the Police post PACE and perceptions of the Unity of the Criminal Process 17herehas not only been a shift in official perceptions of the police role since the RCCP report of 1981 but the public has a tendency in the present era to view police in investigations misconduct criminal as having a bearing upon the reputation of the justice judicial If illegally to criminal system as a whole. attitudes obtained evidence improperly be in and obtained confessions must publicly acceptable, order to secure how in judges the then public confidence criminal justice system, react to evidence improperly illegally by the police should take account of changed public obtained or attitudes. Zuckerman pointed out in 1987 that, (119) "'Me investigative process is now seen as part of the justice. " administration of It is arguable that Section 78 of PACE is a manifestation of that perceived linkage between the investigation stage and the trial stage with its explicit direction to the trial factor deciding been in has how to whether to obtained as a evidence judge consider discretion. in his improperly obtained evidence exclude As evidence of popular attitudes linking the police investigation with the legitimacy it is trial the possible to point to public anger and criticism of system criminal of justice directed being justice the at criminal system as a whole cases miscarriages of is despite fact This directed being the the that so police. solely at rather than anger has been justice for 1989-1992 the of as a result many of the main reason miscarriages into due in investigations the than the to offences rather any misconduct police of inherent defect in the trial system itself. The former Lord Chancellor Lord Hailsham has commented on this phenomenon, (120)

31

it... convictions have been overturned as unsafe or unsatisfactory years after sentencehas been pronounced in and some casesserved and previous appeals rejected. Much of this has unjustly rubbed off on the judiciary, who is decide the can after all only cases on evidence which before them. " put Hailsham comments further, "It is impossible to exaggerate the seriousnessof the savage blow which this series of caseshas dealt to public confidence. Much of this is misplaced and is directed either to the persons functions or of the judiciary who presided over the original trials or were parties to the dismissal of the original appeals. No system of justice is foolproof against fabricated or even unreliable evidence and the jurisdiction of the Court of Appeal in criminal casesis not a rehearing of the original case." (121) In March 1991 the 'Times' columnist Bernard Levin in a diatribe aLyainstsome of the judiciary in that newspaper, following the release of the Birmingham Six, called upon Lord Chief Justice Lane and Lord Bridge to resign immediately as they were unfit for judicial office. Lord Bridge had been the original trial judge at Lancaster in 1975 and Lord Lane as Lord Chief Justice had rejected a previous appeal against conviction by It is true that the judges were not responsible for the by the prosecutors or the perjury of police officers or withholding of evidence dishonesty of Home Office forensic scientists, nonetheless judicial intransigence at the six men in 1988. (122)

justice level the which occurred at miscarriages of appeal certainly greatly prolonged the original trial. This judicial intransigence was epitomized by the comment of Lord Lane on January 28th 1988 in dismissing the appeals of the Birmingham Six: "The longer this hearing has gone on, the more convinced this has jury become " (123) the the that verdict of was correct. court Therefore, whether it was fair or not, the judiciary in the public perception are implicated in the serious miscarriage of justice cases which have traumatised the Sir Stephen Sedley in In justice an article, referred to system recent years. criminal justice judiciary has loss the the the miscarriage of suffered over of public confidence cases, "It is a remarkable fact that a judiciary which has taken battering in recent years over miscarriages of a public justice has large in the same period earned public criminal for its willingness to prevent and correct approbation abuses of governmental power. " (124)

32

'Me judiciary

have therefore good reason to insist on proper procedures for investigation being followed by the police. This is because miscarriages of justice

based on errors and misconduct in the investigatory stage have a profound impact on public confidence in the whole criminal justice system, including the judiciary. As Professor Griffiths points out, (125) "Public criticism of judges has increased over the last two decades,fuelled especially by the discovery of major justice, by inadequately investigated miscarriages of often the courts." Professor Birch has commented upon the impact of the miscarriage of justice cases upon the judiciary's view of their role in relation to pre-trial police impropriety, in discussing the case of Rv Sang (1979). In Rv Sang it was stated that the judge is not concerned with how evidence is obtained (save with regard to confessions and an extremely limited discretion for other evidence) only with the use of evidence at trial by the prosecution. Birch comments, (126) "Changes in the way in which the criminal justice system is how in it viewed, and views itself, means that suclýan abdication of interest in the background of a case is in Public interest today. miscarriages of unacceptable justice and the high profile awarded to casesin which pretrial misconduct has led to unjustified and lengthy imprisonment must have played an important part in the courts' changed perception of their role, which now clearly extends to voicing a view on the illegal or improper way in which includes broad the assumption of evidence was obtained and powers to control the pre-trial stage by monitoring, for example disclosure and delay and abuse of power in bringing casesto have Much this seemedexcessive court. of activity ... would but it is improper twenty now regarded as years ago and for the criminal trial to necessary command public respect impression in to the that the courts are colluding and avoid impropriety. " Professor Dennis has commented that the outcome of the Guildford Four Appeal in October 1989 (127) " traumatised the criminal justice system. It raised major ... investigative methods, the trustquestions concerning police Court the the of police evidence, role of worthiness of ... Appeal. " rMe whole criminal justice system, not solely the police, were implicated in the

Unked impact in The the the to of scandal was part extreme gravity of the scandal. 33

for Four Guildford the offences were convicted wrongfully and the extremely which long time they had spent wrongly in imprisonment, fifteen years each. A decline in public confidence in either the police or the judiciary is not likely to be in the long term public interest. Therefore the judiciary have another good reason to insist on proper procedures being followed in the investigation of offences. Reiner and Leigh noted in 1994 that (128)

"The public standingof the police is now at its lowest ebb be form in in they to their since came established modern the first half of the nineteenthcentury." This distrust of the police may not only be confined to the general public. Atiyah has commented that (129)

P. S.

"The legal professions have grown very distrustful of the police. " This is linked, according to Atiyah to the long string of miscarriages of justice. However, public lack of confidence in the police may also be linked to a perception of from failure the to them police protect crime and criminals. a of

Judicial Attitudes to Police Evidence in the i)ost PACE era There is a quid pro quo for the enhancement and clarification of police powers to investigate crime that PACE represents and that is that the police should observe the have been laid down in for investigation the same statute which which procedures is This their them not necessarily to advocate a powers. clarified and enhanced gives in breach (the those to of procedures evidence obtained approach disciplinary approach has been consistently denied by the criminal courts pre PACE disciplinary

it is Chapter 7), PACE: to recognise that admission of evidence rather see and post deliberate in or significant violation of proper procedures can so upset the obtained fairness or legitimacy of the criminal trial itself so as to justify the exclusion of such in evidence certain circumstances. Zuckerman has written of "the institutional reliance" (130) that the prosecuting

34

authorities and the judiciary place on the police. As Zuckerman points out, "The trial is an examination of the police investigation, it is not itself an investigation of the crime. " (131) Given this institutional reliance on the police by the criminal courts the judiciary can hardly disclaim interest in how the police gather evidence. The criminal trial is sufficiently linked in public perception with the police investigations so as to demand judicial concern as to whether the police followed proper procedures in gathering evidence. The creation of the Crown Prosecution Service, a separate state agency for the prosecution of offenders in 1985 does not affect the fact that it is the police who for construct cases prosecution, the CPS role being limited mainly to a 'filtering'role against weak cases or casesnot in the public interest to prosecute. The criminal justice system relies on police investigations in another important way apart from the role the police have in assembling evidence for use in contested criminal trials, and that is the overwhelming reliance on the police to produce guilty feature in interrogation; through the pleas obtaining confessions characteristic of the English criminal justice system is not public adjudication of responsibility but public proclamation of guilt. (132) The reliance of the prosecuting and judicial authorities on the police for the effective feature disposition is of criminal cases a major of the modem criminal and efficient justice system in England and Wales. The Police and Criminal Evidence Act and Section 78 in particular, is arguably day investigations in involving the the that present criminal statutory recognition fundamentally linked is the trial that there are so a criminal collection of evidence and judicial duty to ensure consistent procedural fairness throughout the process, as an individual moves in status from suspect to defendant. In the era of PACE a judicial view has indeed developed that police investigations into crime and the criminal court form a continuum of due process so that unfairness in the police investigative stage can have an adverse impact on the fairness of the Rv Rv Keenan, Wals Court Appeal Rv Canale trial. of such as cases criminal discussed in Chapter 4 and Rv Quinn, Rv Nathaniel discussed in Chapter 7 (133) can disclosing interpreted be the view as a of criminal process where significant all 35

unfairness in the police investigation can impact on the fairness of the criminal trial with consequencesfor the admissibility of evidence obtained in an 'unfair' mariner by the police.

.

As a consequence of this view confession evidence (R v Keenan. Rv Wals Rv Canale) identification evidence (R v Quinn and even highly reliable D. N. A. evidence (R v Nathaniel) has been held by the Court of Appeal to have been wrongly admitted by trial judges because they failed to take properly into account procedural unfairness by the police. Section 78 with its statutory language making the concept of the "fairness of the proceedings" as the criteria governing the exercise of the judicial discretion to exclude evidence has been the device used to reflect this judicial change in attitude towards the admissibility of unfairly obtained confession and non confession evidence. A good example of the change in judicial attitudes post PACE is the response to "significant and substantial" breaches of the verballing provisions of PACE by the decisions The judiciary in Keenan Rv police. senior such as and Rv Canale has shown clear appreciation that the word of the police as to the existence of a in longer interrogation is judicially confession made no acceptable: on this see Chapter 4. In Rv Elson, the Court of Appeal commented, (134) "The PACE Act 1984 (s.66) Codes of Practice were there to The individual the the the might of against state. protect individual was at a great disadvantage when arrested by the behaved the that police police and was so whether or not " the utmost propriety. with The judiciary have become aware of the need to regulate the police-suspect encounter through, in appropriate circumstances the discretionary exclusion of evidence. 17his by decisions be in judicial is those to remarks and such as seen various change Lord Lane in Rv Canale and Saville J. in Hodgson J. in Rv Samuel and Rv Ke WalýN to the effect that significant breach or deliberate breach of important fairness" between "balance has PACE in to the tendency of upset a suspect provisions Rv

by PACE have be that to the obtained and evidence so might police established and from trial the as a result. criminal excluded

'Mere has been a discernible change of judicial attitudes towards exclusion of law Judges' Rules from the the at common under position and so much so evidence 36

that Lord Chief Justice Bingham commented extra judicially in 1990 whilst a Lord Justice of Appeal (135) "It may be that the pendulum has swung too far towards breaches being shown, without adequate exclusion upon consideration of the effect on the fairness of the proceedings, which the Act requires." The cases of Rv Samuel, Rv Keenan Rv Canale Rv Walsh quoted above are all but there seems to be an increased willingness to exclude evidence in confession cases non confession cases where proper procedures for investigating offences have not been followed: see Matto v DPP Rv Sharpe Rv Nathaniel and Rv Smurthwaite for important examples of this trend. (136) It may be argued however, that with regard to Matto v DPP and Rv Sharpe, two cases concerning the exclusion of breathalyzer S. 78, the approach of the courts is consistent with a judicial evidence under willingness to interpret the Road Traffic Act on the obtaining of samples of drink driving very strictly even in the pre PACE era, e.g. see Morris v Beardmore. (137) However, Matto v DPP and Rv Sharpe are also consistent with cases such as Rv Nathaniel which view police non-compliance with proper procedures generally as a factor discretion. 78 the relevant under section In particular there has been a greater willingness to exclude identification evidence have breached defendant Code D PACE is prejudiced as a the the where police of and Lord Taylor C. J. in involving from Rv Qumin, result. commented a case evidence an identification parade conducted by the police, (138) "We wish to emphasise that where a detailed regime is laid down in a statutory code, it is not for the police to ... for that substitute their own procedure and their own rules laid is down. which -" In Rv Nagah (139) identification evidence was held to have been wrongly admitted because of a deliberate flouting of Code D by the police in order to guarantee a by "confrontation" identification the the through the use of witness of suspect positive for identification instead identification. of a properly conducted parade, as a procedure This Code D. defendant to the was entitled under approach of the courts as breach judicial to attitudes police of proper procedures represents a strengthening of parades than in the pre PACE era (140) and a much greater identification discretion because in breach to that evidence exclude of of willingness in PACE Pre PACE the the than manifest pre was era. situation was procedures for identification

37

summed up by Jackson, who commented, (14 1) "Identification evidence has occasionally been excluded for identity basis laid down the that proper procedures on have the not parades and showing of police photographs been complied with. "

However, there are a number of judicial dicta and the problematic case of Rv Chalkley (142) to suggestthat judicial attitudes to the exclusion of non confession evidence under S.78 are not as homogenousas the preceding discussionmight have suggested. These dicta and Rv Chalkley seek to suggestthat S.78 merely re-states the common law position and thereforewould deny that Section 78 is basedon a new ideological rationale for the exclusion of non confession evidence. In Rv Mason Watkins L. J. said that Section 78 did no more than re-statethe power which judges had at common law before PACE. (143) In Rv Christou Lord Taylor C.J. (144) commented., "T'he learned judge held that the discretion under S.78 may be wider than the common law discretion identified in Rv Sang the latter relating solely to evidence obtained from the defendant after the offence is completed, the being he discretion However, not so restricted. statutory held that the criteria of unfairness are the same whether the trial judge is exercising his discretion at common law is We What the agree. unfair cannot statute. or under depending different be to on standards subject sensibly the source of the discretion to use it. " It is important to note that S.82(3) of PACE expressly preserves the common law

discretion. In Rv Chalkley, the Court of Appeal clearly held that Section 78 did not enlarge the in 78 inclusion Section "the law. 'Me the that the of words court said common did in that the the mean court could not was obtained" evidence which circumstances in had disapproval it the the of way which evidence as a means of expressing exclude been obtained. Auld L. J. then stated the common law discretion as being the test 78 (145) S. under "Save in the case of admissions and confessions and generally from the accused after the commission as to evidence obtained discretion is to exclude evidence unless there the no offence of its quality was or might have been affected by the way in which it was obtained."

38

However, as Dennis persuasively argues (146) there are good grounds for believing that Rv Chalkley is not merely an odd decision but is actually per incunam as it expressly failed to take into account such binding authorities as Rv Smurthwaite (1994) which clearly can be seen as interpreting the Section 78 more widely than the law discretion. In particular the use of entrapment by the police is a common factor relevant under the S.78 discretion, although this was expressly denied as being relevant to the common law discretion by the House of Lords in Rv Sang (1979): see Chapters 8 and 9. Despite the small stream of judicial opinion going the other way, increased judicial willingness to exclude evidence when proper procedures for the investigation of have been followed is indicative offences not arguably of a changed perception of the police role and the consequent need to regulate the exercise of police powers. The Police and Criminal

Evidence Act recognized that the police must be given considerably greater powers than the citizen in order to perform the important duties society places upon the police, but an important corollary of this is that the police must conform to proper procedures laid down by Parliament for the investigation of do Indeed is best in interests for Dixon to the the themselves offences. so of police as points out (147), "A central tenet of the police claim to legitimacy is their subordination to law. Police work is presented as being the application of an objective set of laws. " There is perhaps another good reason as to why the judiciary should insist that the for investigating police comply with proper procedures offences. The detection and depends the solution of vast majority of crime on information supplied to the police by the pubic. ý[be RCCJ conunented that, (148) "In the majority of investigations the police rely heavily in the public and particular on victims, to notify them on been have that committed and to provide the of crimes information necessary to identify the offender. Research indicates that between 80% - 90% of offences are brought to the notice of the police by victims, bystanders or other " the public. members of The consequence of this is that good police-community relations are vital to effective law enforcement. A serious deterioration in police-community relations may have an information from by the the the and quality of received quantity public effect on One important in way of the crime. maintaining public confidence police about fair in is that to police powers are exercised a ensure and proper manner and police

39

that evidence gathered is as reliable as possible. The judiciary have a vital role here in their ability to exclude improperly obtained confessions and improperly obtained non confession evidence from the criminal trial. Such measures may not only have a salutary effect on police behaviour but are also potentially capable of restoring and maintaining public confidence in the criminal justice system, such public confidence that is vital to the proper function of that system.

The Si2niricance of the European Convention on Human Ri2hts and the Human Rii! hts Act of 1998 It is proposed now to consider the effect of the European Convention on Human Rights and The Human Rights Act of 1998 on the possibility of the exclusion of improperly obtained evidence in criminal proceedings. The Human Rights Act 1998 incorporates directly into English law the E.C. H. R. Until it comes into force, in October 2000, the European Convention will still be relevant. However, as Dennis points out the Human Rights Act 1998 (149) it will have a profound impact on the creation, ... interpretation and application of legislation and case law through the whole of English law and the law of is law Indeed, the no evidence exception. of criminal be is to procedure and evidence expected one of the implications the most significant areas of contention as Convention in Article 6 the of and particular are considered." Article 6 is the "fair trial" provision of the E.C.H. R.

It is likely that judicial decisions under PACE excluding evidence where there has been "significant and substantial" breach of fair procedures for investigations be held be in by Convention, PACE the to will accordancewith especially established Article 6; as Dennis comments,of the Convention rights, "It is impossible to predict their precise impact on the law. least because in many casesthe courts not current ) law likely English the to that relevant say encapsulates are Convention law. This is particularly so in relation to instances where the exclusionary discretion under Section 78 of PACE is used to safeguard the fairness of the be It will proceedings. surprising if previous judicial 40

implementationsof notions of fairness, whether as part fair law's the 'right to trial' to the pursuant or a of common in held discretion, to not coincide most cases are statutory " Convention. 6 Article the the of with requirementsof However, areas of the law beyond the scope of this thesis, such as S.34 of Ibe Criminal Justice and Public Order Act 1994 may be much more vulnerable to

challengetmder the new Hwnan Rights Act. Once the Human Rights Act comes into force it will be no longer necessary for parties to seek redress in Strasbourg under the E.C.H. R. However, for the time being the E.C.H. R. itself has relevance to English law. For discussion on how the Convention issue improperly discussion in the the affects of obtained evidence and entrapment see Chapter 8 of this thesis, but after the decision in Rv Khan House of Lords (15 1) the Convention has relevance to the exercise of the trial judge's discretion under Section 78 of PACE. At trial in Rv Khan the trial judge had accepted that the aural had between in he Khan three others, and which surveillance of a conversation his heroin, in illegal least in involvement importation the admitted was at arguably of breach of his right of privacy under Article 8 of the Convention. However, the trial judge had gone on to say that neither this nor anything else in the case required him to S. 78 PACE. the evidence under of exclude The House of Lords held that the fact of the apparent breach of the Convention was judge's discretion be the the to under exercise of relevant something which might Section 78. Lord Nolan commented, (152) "If the behaviour of the police in the particular case amounts to an apparent or probable breach of some relevant law or is dictates that this a consideration convention, common sense for it is Its be into taken what worth. account which may determined be however, not so will normally significance, irregularity by its as upon apparent unlawfulness or much its effect, taken as a whole, upon the fairness or unfairness of the proceedings."

Tberefore an apparent breach of a Convention right is a factor which a judge might discretion but is in into that there the the no exclusionary take exercise of account duty to take it into account. In conclusion it can be argued that the incorporation of the E.C.H.R. in The Human lead development likely is is Act to a continuation, even a to Rights and a welcome decisions judicial has been to the trend of exclude evidence which strengthening of 41

important breaches provisions of of obtained through significant and substantial PACE, Section 78 being the appropriate mechanism for exclusion.

A Note on the Constitutional

Position of the Police and Criminal Investii! ation

Given that there is an institutional reliance by the criminal courts on the police to is for it investigations trial, to use at and conduct criminal assemble evidence therefore important to have an understanding of the constitutional position of the duty investigations. Although in the to their to undertake criminal police regard Crown Prosecution Service was set up in 1985 to take away the responsibility of from CPS The Glidewell Report the the are still police, as makes clear, prosecution dependent on the police to assemble the case file, "T'he new service found itself occupying a position between the police and the Courts. The police continued to be for deciding responsible on the charge and preparing the file. had The CPS a new role, that of reviewing cases case in defendant had it to the after police charged a passed " decide justified the to the charge. whether evidence order (153) The Crown Prosecution Service does not direct the police in their criminal investigations although they can ask for more evidence in a particular case. Given by investigations direction CPS is judicial the or oversight of criminal that there no or in do identify is their it important the the that to on police operate constraints police The Evidence Act Criminal The Police investigations. and and conduct of criminal for legislative Practice Codes of criminal scheme represent a strictly controlled investigations once they have begun, but what is to stop the police from refusing to Exactly what duties do the police have in regard to investigate a crime at all? Leigh's Professor is The investigations? starting point undertaking criminal observation, "Police discretion, like executive discretion generally, must by imposed limitations operate wid-iin the constitutional " (154) the courts. and statute

deciding have in discretion how is issue the The crucial whether to police much imposing There investigation no or not. exists statute general criminal a commence 42

duties of law enforcement upon the police. However, the common law is not silent on the matter. The leading authorities are "Ibe Blackburn Cases", starting with Rv Metrovolitan Police Commissioner ex Parte Blackburn (1968). (155) In this case the Commissioner had decided for the time being not to prosecute gaming clubs for breaches of the Gaming Acts in the absenceof special circumstances. The court held that this was a breach of a legal duty owed to the general public and potentially enforceable in an appropriate form of proceedings against the Commissioner. The Court of Appeal held, "... it was the duty of the Commissioner, as also of Chief Constables to enforce the law, and though chief officers had discretions, (e.g. whether to prosecute in a of police particular case, or over administrative matters), yet the Court would interfere in respect of a policy decision failure duty law to to the amounting a of of the enforce land. " (156)

Lord Deming M. R. commented that, " there are some policy decisions with which I think ... the courts in a case can, if necessary, interfere. Suppose his issue directive Chief Constable to to men were a a that no person should be prosecuted for stealing any goods less than E1OOin value. I should have thought that the failing his be in He it. would court could countermand duty to enforce the law. " (157)

As Leigh conu-nents,the decision in the case, 1'...clearly assumes,in my submission rightly, that the police cannot properly refuse to enforce a criminal offence between distinction draw defensible It is to a more at all. individual casesthan between classesof offences." (158)

Further guidance was given by the Court of Appeal in Rv Metropolitan Police Conunissioner ex. 12arteBlackburn (No. 3) (1973) (159). According to Leigh the case (160) following the principles: relevant establishes

The courts will not interfere with the Chief Officer of Police unless he in law Ms enforcement. responsibility over substance abdicates The Chief Officer can so abdicate his responsibility by refusing to exercise a 43

discretion vested in him by, for example,refusing to enforce a law at an or by adopting policies which in substanceensurenon-compliance. Therefore, while the police enjoy considerable discretion with regard to individual criminal investigations: whether to investigate at all, whether to caution or charge or take no ftuther action, and if to charge, the nature of the charge, the courts will interfere if the police decide at the policy level not to enforce a particular law or decide not to investigate particular classes of offender. G. Robertson is cynical about the reach of the Blackburn doctrine (161), "The law - or at least the judges who enforce it - will not call upon police chiefs to answer for very much. They interfere if satisfied that there has been an will only abdication of responsibility; in effect a determined refusal to enforce the law. " and "To say that the police are answerable to the law alone means that they are not answerable to anyone in the way they choose to enforce the law. " (162)

44

Footnotes to Chapter

1

Ibe purposes of cross examination under S.1 f(ii) is described as a "classic in [1994] All law by Zuckerman the et al conundrum" of of criminal evidence ER Annual Review at p. 195. (2)

R. Munday "Stepping Beyond the Bounds of Credibility: The Application of Section 1 f(ii) of the Criminal Evidence Act 1898". [1986] Criminal Law Review p. 51 1.

(3)

The modem exclusionary rule for similar fact evidencedatesback to Makin v A-G for New South Wales (1894) A. C.57. However the exclusion of similar fact evidence as a rule has its origins in the early nineteenth century - see Crosson Evidence SeventhEdition at p.340 and Rv Cole (1814).

(4)

W. Twining "Rethhildng Evidence" 1990 at pp. 363-364.

(5)

Illegally Obtained Evidence has historically been admissible in law in England discretion from dating Kuruma R, 1955 to v subject an exclusionary see only [1955] AC 197. In contrast 'involuntary' confessions have since 1783 been law to subject an exclusionary rule of called the 'voluntariness rule', form by law 76 in two the of section subsequently replaced separate rules of 2(a) and 76 2(b) of the Police and Criminal Evidence Act. Confessions were from 1918 also subject to discretionary exclusion upon breach of the Judges' Rules, see Rv Voisin [1918] 1 KB 531. Confessions are subject at the discretionary 78 PACE (hereinafter time to of exclusion under s. present for Evidence Act 1984). Police Criminal the the and adopted as acronym

(6)

T. A. Critchley "A History of Police in England and Wales"' 2nd edition, 1978. C. Emsley "The English Police: A Political and Social History", 1st Edition 1991. R. Reiner "The Politics of the Police" 2nd edition 1992.

(7)

See A Brogden "The Emergence of the Police: The Colonial Dimension". The British Journal of Criminology (1987) Vol. 27 at p.4. "Colonial police in British turn police work was pre-eminently missionary perhaps work and legitimise to external governance". work

(8)

See R.Reiner "The Politics of the Police" 1992 at p.70.

(9)

L. Lustgarten "The Governance of Police" 1986 at p.25.

(10)

H. Chapter 2 1. Police" 1986 "'The Governance Lustgarten L. at and of see Dennis "The Law of Evidence" 1999 at p.233.

(11)

L. Lustgarten "The Governance of Police" 1986 at p.26. L. Lustgarten "The Governance of Police" 1986 at p.28.

(13)

Sir James Fitzjames Stephen, quoted by Lustgarten "The Governance of Police" 1986 at p.26, note 5.

(14)

J. Waldron "The Law" 1990, p. 80. The Royal Conunission on Police Powers 1929, para. 15.

(16)

Sir James Fitzjames Stephen: "History of the Criminal Law" (1883) Vol. 1, Evidence 233. 1999 by H. Dennis, The Law 1. 493-494 at p. of quoted pp.

45

(17)

P. Devlin, "Tbe Judge" 1979 at P.M.

(18)

See Section 8(1) of PACE: Power of the Justice of the Peace to authorise entry and search of premises. Section 43(l): Power of the magistrates court to issue a warrant of further detention authorising the keeping of that person in police detention beyond thirty-six hours already elapsed.

(19)

A McConville and J. Baldwin "The Role of Interrogation in Crime Discovery Conviction" (1982) Vol. 22 British Journal of Criminology at p. 174: and "Questioning has come to dominate police work".

(20)

See Section 37(2) of PACE.

(21)

"An Address to Police Constables on their Duties" from Sir Howard Vincent's Police Code 1882. Tbe address contains the injunction "Neither judges, magistrates nor jurymen can interrogate an accused person ... much less then ought a constable to do so." The Royal Commission on Police Powers 1929 commented on this passage that "This principle is firmly implanted in the minds of most of the police before officers who gave evidence us". Paragraph 60 of the Royal Commission Report 1929.

(22)

S. Uglow, "Policing Liberal Society" 1988 at p. 52.

(23)

M. McConville, J. Hodgson, L. Bridges, A. Pavlovic, "Standing Accused: The Organisation and Practices of Criminal Defence Lawyers in Britain" 1994 at p. 73.

(24)

Rv Gavin and others (1885) 15 Cox C. C. 656.

(25)

Rv Knight and Thayre (1905) 20 Cox C.C. 711.

(26)

Rv Crowe and Myerscough. Central Criminal Court. The Justice of the Peace, December 8th 1917, p.288.

(27)

R. Reiner, The Politics of the Police 1992, p.57.

(28)

See the discussion in Chapter 8: "Entrapment".

(29)

For example where magistrates laid down rulings which halted particular law J. Davis, "A Poor Mans traders, see enforcement policies against street System of Justice: The London Police Courts in the second half of the 27.2. Historical Journal The (1984) nineteenth century"

(30)

T. Humphreys, "The Bar as a Profession" [1956], Criminal Law Review, 304. 297 at p. p.

(31)

See L. Lustgarten "The Governance of Police"' 1986 at p.28.

(32)

D. Hay and F. Snyder, "'Policing and Prosecution in England 1750-1850". 1994 37. at p.

(33)

C. Ems1ey"Crime and Society in England 1750-1900", 1987 at p. 162.

(34)

R. Reiner, '*'Tlie Politics of the Police " 1992, p. 70.

46

(35)

On this point see generally M. Brogden, "Ibe Police, Autonomy and Consent" 1982.

(36)

C. Reith, "A Short History of the Police"' 1948 is a good example of the "official" police history.

(37)

C. Emsley, "The English Police: a political and social history" 1991 at p. 89. Note also the comment of the Times Newspaper 13th February 1906: "Our force is a credit to the men who are responsible for it and a source of police Englishman to pride every who is acquainted with police administration in other countries".

(38)

R.Reiner, L. Leigh, "Police Power" p.69 at p. 70 in "Individual Rights and the Law in Britain" 1994 edited by C. McCrudden and G. Chambers.

(39)

Sir Robert Mark, The Dimbleby Lecture 1973. Police Federation Papers.

(40)

J. E. Heydon, "Evidence: Casesand Materials" Second edition 1984, p. 178.

(41)

Lord MacDermott, "The Interrogation of Suspects" [1968] Vol. 21 Current Legal Problems at p. 12.

(42)

Royal Commission on Criminal Procedure Report (RCCP) 1981, Chapter 2 paragraph 2.7.

(43)

Rv Thompson [1893] 2 QB 12 [1891-4] All ER Rep. 376.

(44)

Rv Leatharn [1861-73] All ER Rep. 1646. Jones v Owen (1870) 54 JP 759.

(45)

1. H. Dennis, "Ibe Law of Evidence" 1999 at p. 232.

(46)

A. A. S. Zuckerman, "Tbe Principles of Criminal Evidence" 1989 at pp.344345. However., today the police cannot be seen as independent of the courts. As 1. H. Dennis points out: "Although the constitutional form of the independent constable has been retained in substance the police have become investigators Evidence" 1. H. Dennis "The Law of crime". of official state 1999 at p.233.

(47)

Callis v Gunn [ 1964] 1 QB 495 [196313 All ER 677.

(48)

Ibrahim vR[ 1914-15] All ER. Rep. 874 at p. 879.

(49)

The 1929 Royal Commission on Police Powers paragraph 169: "We in instruction to the that no questioning of a person police recommend a rigid be he is or may charged should custody about any crime or offence with which be permitted. This does not exclude questions to resolve elementary and in " a voluntary statement... obvious ambiguities

(50)

The Beck case is discussed briefly by P. Devlin in 'Me Judge 1979, at p. 188. As Devlin comments, "This miscarriage of justice was the goad which finally Criminal into Court Appeal". Parliament the of setting up pricked

(51)

On this point see R. Reiner, L. Leigh "Police Power" at p. 70 of C. McCrudden in Britain", "Individual Rights Law 1994. Chambers G. the and and

(52)

ibid at p.70. 47

(53)

L. Lustgarten "Ibe Governance of Police" 1986 at p.28.

(54)

ibid at P.29.

(55)

Goodhart - Memorandw-n of Dissent by Dr. A. L. Goodhart to the Royal Commission on the Police 1962 Report, paragraph 20.

(56)

Rv May (1952) 36 Cr. App. R. 91 at p.93.

(57)

Lord MacDermott "'Ibe Interrogation of Suspects" [ 1968] Vol. 21 Current Legal Problems, p. 20.

(58)

Sarah Manwaring-Wifte "The Policing Revolution" 1983 at p. 118.

(59)

R. Reiner, "Myths vs Modernity: Reality and Unreality in the English Model in Policing", "Comparisons in Policing: An International 16 18 of p. at p. Perspective" edited by Jean-Paul Brodeur, 1995.

(60)

On Japan see William P. Cleary, "Criminal Investigation in Japan" (1989) Vol. 26 California Western Law Review p. 123 at p. 147: "'Ibe Japaneseplace too much reliance on the confession", and see also A. Watson "The Dark Clouds over Japanese Criminal Justice: Abuse of suspects and forced 516, Justice Peace Local Government Law (1995), the confessions" of and 534. On the U. S.A. see Gordon van Kessel: The Suspect as a source of Testimonial Evidence -a Comparison of the English and American approaches (1986) Kessel comments that in the Volume 38 The Hastings Law Journal, p. l. U. S.A. "Police interrogation efforts vary widely but that at least in 'professional' police departments they probably continue to question the great for 117. p. serious offences" at majority of suspects arrested

(61)

The Indian Evidence Act 1872, Section 25 states "No confession made to a be proved against a person accused of any offence". police officer shall Section 26 states "No confession made by any person whilst he is in custody be in immediate it the presence of a magistrate made of a police officer unless be proved as against such person". shall

(62)

Sir Robert Mark "In the Office of Constable" 1978 at p.293.

(63)

A Report of the Inquiry into the Circumstances surrounding the Convictions in By Woolwich in 1974. Guildford Bomb Attacks the the and arising out of Rt. Hon. Sir John May, 30 June 1994 at p. 307, paragraph 21.17.

(64)

Rv Cunningham [195712 QB 396 [195712 All ER 412. Dixm comments: "There is a significant (but as yet inadequately traced) link between the trend in areas of modem substantive criminal law towards requiring proof of interrogation in intention i to order obtain of police use and ective sub Police Practices, Regulation 1997 Legal in Policing: Law and at confessions". 273. p.

(65)

Section 8 states: "A court or jury in determining whether a person has committed an offence: (a) shall not be bound in law to infer that he intended or foresaw a result of his being its by a natural and probable consequence of reason only of actions but those actions, (b) shall decide whether he did intend or foresee that result by reference to all the evidence drawing such inferences from the evidence as appear proper in the circumstances." 48

(66)

Damaska quoted in L. Lustgarten "Ibe Governance of Police" 1986 at p.2.

(67)

D. Dixon, "Law in Policing" 1997 at p.270.

(68)

M. Zander, "A Matter of Justice" 1989, p. 196.

(69)

Sir John Woodcock, "Why we need a revolution" (1992) 100 Police Review, p. 1932.

(70)

Both studies quoted by M. Zander in "The Police and Criminal Evidence Act 1984 Third Edition", 1995 at p.22 1. lbid at p.22 1.

(72)

A McConville and J. Baldwin: "Courts, Prosecution and Conviction" 1981 at Yet 138. p. as they point out at p. 141 a guilty plea often follows a confession. This feature of the criminal process saves the police and the court system valuable resources.

(73)

D. Dixon: "Revising police powers: legal theories and policing procedures in historical and contemporary contexts,% at p. 160 in "Contemporary Issues in Criminology" 1995 edited by L. Noaks, M. Levi and M. Maguire. For some critics the 1984 Police and Criminal Evidence Act represented a dramatic shift in power towards the police because of the Act's institutionalization of a interrogate. for Nicholas Blake to the Haldane Society commented in power 1985: "Despite minor concessions by the Bill's promoters in the course of its by the them in the 1984 Act is the parliamentary passage, prize gained fundamental principle of the right to interrogate and the right to detain for interrogation. 'Mose gains by the government and the police service represent debate be loss liberties. henceforth From the to a considerable will about civil degrees of pressure rather than about the right to exert pressure at all". Nick Blake, "The Right of Silence in English Criminal Law" in The Haldane Journal., Volume 1,1985, p. 7 at p. 14. Since the enactment of PACE become interrogative has indeed degree the establishing pressure acceptable of important issue: 5 Chapter an of this thesis. see

(74)

A McConville, J. Baldwin, "Courts, Prosecution and Conviction", 1981.

(75)

M. McConville, "Corroboration and Confessions: The Impact of a Rule basis be Confession Conviction the that on of no can sustained requiring for No. RCCJ 32-33. Research Study 13 Alone", the at pp. evidence

(76)

On the role of confession evidence in the miscarriage of justice casessee I. H. Dennis "Miscarriages of Justice and the Law of Confessions: Evidentiary Issues and Solutions" [1993] Public Law, p. 291.

(77)

R. Reiner, "Chief Constables" 1992 at p. 150. See also the opinion of The Glidewell Report at p.28: "The Police and Criminal Evidence Act 1984 but hand in investigation the respects on other some extended police powers of imposed considerable new restraints on police officers interviewing suspects, As to the thus alleged offences. a result, obtaining of confessions on and by Act the the the until passage of accused which evidence of a confession less is feature frequent now much common of criminal prosecutions, was a based is The on confession evidence very rare". prosecution solely and a Review of the Crown Prosecution Service: A Report 1998, Sir lain Glidewell.

49

(78)

That great changes have indeed occurred in police practice is accepted by the justice his in Rose D. journalist the criminal otherwise critical expos6 of Justice" 1996, Criminal Law: The Collapse "In Name the the system of of pp. 17-18.

(79)

C. Emsley, "The English Police: a Political and Social History"" 1991 at p. 169. An example of the complacent attitude of the Establishment to the police in the early 1960s is to be found in the comments of Sir Ludovic Kennedy, who wrote the Introduction to Lord Devlftfs memoirs "Taken at the Flood". At page 7 Kennedy writes, "In the early 1960s I made two documentary films on I spoke of the police the police for the television programme "This Week" ... bending the Judges' Rules, especially in relation to confessions. Naturally the denounce boomed "Bending to the old guard were swift me. rules" Manningham-Buller (now elevated to Lord Dilhorne) "seldom occurs". Lord Shawcross Q. C. who had taken part in the programme thundered "There is no foundation whatever for such opinions", while Sir Lionel Heald, a former Attorney-General, claimed that the programmes had been faked. All these strictures were of course articles of faith". P. Devlin: "Taken at the Flood" 1996.

(80)

Sir Robert Mark "In the Office of Constable" 1978, p.52.

(81)

A Brogden, "On the Mersey Beat" 1991, at p. 105.

(82)

B. Weinberger, "The Best Police in the World: An Oral History of English Policing from the 1930s to the 1960s" 1995 at pp. 190-191. Of course at the time, the early 1960s, the police were viewed generally as unproblematic. For A Banton in in in "The Policeman 1964 the the example, sociologist writing Community" commented that lessons could be learnt by the sociologist from institution English that was "working well"'. Preface the police, an analyzing Policeman in Community" "The 1964. the p.vii

(83)

Both the Challenor case 1964 and the Sheffield case 1963 are discussed at further 75 R. Reiner" The Politics Police" 2nd 1992. A the edition, p. of of by Mars-Jones investigated Inquiry the that the of police scandal of was period 1964 into allegations that London Policebfficers had planted evidence on three boys charged with possessing offensive weapons in 1959. The Inquiry boys. details For Sir David Nagley "The the the three of case see exonerated Technique of Persuasion", fourth edition 1991, at pp. 13-15.

(84)

The Criminal Law Revision Committee. The Eleventh Report, 52 3 paragraph at p. 1.

(85)

R. Reiner "T'he Politics of Police Research in Britain" from "Police Research: Some Future Prospects" edited by Mollie Weatheritt 1989 at pp. I 1- 12.

(86)

Sir H. Fisher: The Confait Case: Report, 1977. R. Reiner "The Politics of the Police" 2nd edition, p. 82.

(87)

M. Brogden, "Ibe Police: Autonomy and Consent" 1982 at p.237, and see his in "Ibe Preface": "Ibe primary characteristic of the riots comments themselves was not an anarchic reaction to social malaise but virulent hostility to police officers".

(88)

Lord Scarman: The Scarman Report: The Brixton disorders, 1981.

(89)

Rv Sang [ 1979] 2 All ER 1222 at pp. 1245-1246.

50

1972,

(90)

Rv Voisin (1918] 1 KB 532 [1918-191 All ER491.

(91)

R. Pattenden "Judicial Discretion and Criminal Litigation" 1990 at p.276. Tbere were however, some exceptions. For example Sir Frederick Lawton has written: "In the early 1960s whilst trying a capital murder case I adjudged an alleged oral confession inadmissible because of what I considered to be gross breaches of the Judges"Rules by a senior CID officer". Sir Frederick Lawton "Tarnished Police Evidence". The Law Society's Gazette I Ith May 1991 at p-2- It is important therefore not to make glib assertions about the attitude of all the judiciary towards police breaches of the Judges' Rules.

(92)

Rv Mills and Lemon [ 1947] KB 297 [1946] 2 All ER 776.

(93)

KununavR

(94)

Rv Payne [1963] 1 All ER 848 [1963] 1 WLR627.

(95)

Rv Court [1962] Crim. L. R. 697 CCA.

(96)

Ibrahim vR [1914-15] All ER Rep.874 at p. 877.

(97)

Callis v Gunn [1964] 1 Q.B. 495 [1963] 3 All ER 677.

(98)

Rv Prager f 1972]1 AU ER 1114.

(99)

DPP v Ping Lin [ 1976] AC 547 [1975] 2 All ER 917.

[19551 A. C. 197 [1955] 1 All ER236.

(100) Rv Northam (1967) 52 Cr. App. R. 97 atp. 102. Criminal Law Revision Committee. Eleventh Report, paragraph 52 page 31. (102) Box and Russell "The Politics of Discreditability: Disarming Complaints Police" 23 Sociological Review 2, 315. The is (1975) that the p. against point is by the complaint a suspect of police misbehaviour, a no matter now cogent determining factor in the resolution of the dispute between the police and the be "character" the of the suspect. suspect will (103) R. Reiner "The Dialectics of Dixon: The Changing hnage of The T. V. Cop" by Service". A in Force, Police Stephens 1994, "Police S. 12 edited and p. Becker. (104)

Sir Henry Fisher, "Report of an Inquiry by the then Sir Henry Fisher into the leading to the trial of three persons on charges arising out of the circumstances death of Maxwell Confait and the fire at 27 Doggett Road, London SEC' 1977. Sir Henry Fisher commented at paragraph 230 of his Report: "The evidence do heard it have I the that not police at present see as their suggests which duty to initiate enquiries which might point to the fact that for some other fail. is And there the nobody outside the police prosecution should reason duty his it to spur the police on to question the case and so who regards as follow lines of enquiry which might be inconsistent with it".

(105)

A McConville and J. Baldwin, "Courts, Prosecution and Conviction" 1981 at 191. P.

(106)

A. A. S. Zuckerman, "The Principles of Criminal Evidence" 1989 at p. 314.

Politics Police" 2nd 57"The 1992 Reiner, As Reiner R. the (107) of edition p. in U. I. Motmties in Canada F. B. S. A. have the the the and may also points out,

51

enjoyed a mythic status in those countries but these are elite organizations. The status attached to the English police was focused on the lowly police constables. (108)

Rv Northam (1967) 52 Cr. App. R. 97 at p. 102. Another example of official complacency about the integrity of the police is implicit in the comment of Lord Kilmuir, then Sir David Maxwell Fyfe, Attomey-General who remarked in 1948 that "there is no practical possibility" of an innocent man being hanged in this country and that anyone who thinks otherwise is "moving in a fantasy". If the death penalty had been available in 1974 and 1975 realm of most of the Bim-lingham Six and Guildford Four would have been executed. For the Maxwell-Fyfe reference see "T'he Acceptability of Executing the Innocent", Andrew J. Stinchcombe, The Howard Journal of Criminal Justice (1994) Vol. 33, p. 304 at p. 305.

(109)

Sir Paul Condon quoted by S. Holdaway in "Modernity, rationality and the baguette" p. 154 in "Comparisons in Policing: An International Perspective" 1995 edited by Jean-Paul Brodeur.

(110)

Sir Derek Hodgson quoted by D. Rose in "A Climate of Fear: The Murder of P. C. Blakelock and the Case of the Tottenham Three" 1992, at p.95. H. Montgomery Hyde, "Norman Birkett" 1984 at P..'119. -

(112)

D. Dixon, "Revising 'police powers': legal theories and policing practices in historical and contemporary contexts//, p. 128 at p. 131 in "C ontemporary Issues in Criminology" 1995, edited by L. Noaks, M. Levi, M. Maguire. There is a positive side to the view of policemen as "citizens in unifonn", as Geoffrey Marshall pointed out, "The traditional description of the police officer as a least in is though of private a species citizen, many ways an exaggeration, at he be that signal enjoys no special quasi-judicial or state privilege and may his for in the sued, as may anybody else, wrongful acts committed course of duties, and in particular for wrongful arrest, assaults or false imprisonment". G. Marshall "The Police: Independence and Accountability" p.251 in "The Changing Constitution" edited by J. Jowell and D. Oliver, Ist edition fqe! ý. After the Police Act 1964 section 48 the Chief Constable of a force was made his liable for torts the of constables. vicariously

(113) D. Dixon, ibid at p. 154. (114)

R. C. C.P. Report 1981, paragraph 2.21.

(115)

R. Reiner, L. Leigh, "Police Power", in "Individual Rights and the Law in Britain" 1994. edited by C. McCrudden and G. Chambers at p. 7 1. )

(116) ibid at p. 87. (117)

R. Reiner, "The Politics of Police Research in Britain", p.6. in "Police Research: Future Prospects" 1989, edited by M. Weatheritt.

(118)

RCCP Report 1981, Chapter 4, paragraph 4.2.

(119)

A. A. S. Zuckerman, "The Principles of Criminal Evidence" 1989, at p. 345.

(120)

Lord Hailshwn, "On the Constitution" 1992 at p. 68.

52

(121)

ibid. As Robert Stevens commented in "The Independence of the Judiciary" 1993 at p. 178, "As some pointed out, the many apparent failings of judges to do justice in major criminal cases were in fact failings of the police with " doctored to respect evidence and uncorroborated confessions.

(122)

B. Levin, "Hoist by their arrogance", The Times 18th March 1991 at p. 10. Levin commented that: "Lords Bridge and Lane must go not because of dishonesty but because they consistently perpetuated injustice This pair ... have got to go. These two most prominently have done terrible and shameful is lessened by their their certainty that they wrong and culpability not a whit doing were right. " The former Master of the Rolls Lord Denning has also been criticized for his judgement in the civil action the Birmingham Six fought in 1980 against the police and prison officers, see C. Mullin, "Error of Judgement", Revised 1990. edition

(123) Lord Lane, quoted by C. Mullin in "Error of Judgement" 1990 at pp.266-267. (124)

Sir Stephen Sedley "Rights, wrongs and outcomes", The London Review of Books 11 May 1995, p. 13. The former Lord Chancellor Lord Mackay seems to strike a defensive note when he writes, "Even if one takes full account of all that has been said about miscarriages of justice, in very few of the cases can legitimate criticism be levelled against the judges". "The Administration of Justice" 1994 at p.6.

(125)

J. Griffiths "Ibe Politics of the Judiciary" 1997 at p. 56. Also see the comment be best 34 "The in Judiciary" 1: J. Griffiths "The Politics that the can at p. of of be is judicial that the the to worse than courts were shown performance said of highly innocent unpopular persons charged with useless as protectors of offences".

(126)

Professor Birch, "Excluding Evidence from Entrapment: What is a Fair Cop?" [ 1994] Current Legal Problems, p. 78.

(127)

Professor I. H. Dennis, "Miscarriages of Justice and The Law of Confessions. Evidentiary Issues and Solutions" [1993] Public Law, p. 294.

(128)

R. Reiner, L. Leigh "Police Power" in "Individual Rights and the Law in Britain", edited by C. McCrudden and G. Chambers at p.69. C. Emsley in "The English Police: A Social and Political History" 1991, corroborated the Emsley "At Leigh by Reiner the comments: above when and view expressed by B. B. C. in decade (1980s) the the suggested that a poll commissioned end of bent believed the the rules to gain that the police two-thirds of population convictions and newspapers at opposite ends of the political spectrum were low" for 17. time the that at an all at p. was police public esteem concluding

(129)

P. S. Atiyah, "Law and Modem Society" Second edition, 1995 at p. 72.

(130)

A. A. S. Zuckerrnan, "A Strategy for Reducing the Incidence of Miscarriage of Justice" (1993), Northern Ireland Legal Quarterly, p. 3 at p.4.

(13 1) ibid. (132)

This is not to say that confessions are vital to the investigation of all types of fraud forms "In M. Levi As cases, unlike other almost all points out: crime. interpretation its documentary are central and proper evidence and of crime, Issues desirable of supervision of complement. confessions are merely a interviews are consequently less major a component of fraud cases since there 53

is normally some documentary evidence against which to validate Serious Trial Investigation, Prosecution "The 202 " At of and of confessions. p. Fraud". Research Study Number 14 for the Royal Commission on Criminal Justice. (133)

Rv Keenan [1989] 3 AHER598Rv Walsh (1990) 91 Cr. App. R. 161. Rv Canale [1990] 2 All ER 187.

Rv Quinn [ 19901Crim. L. Rev. 581. Rv Nathaniel (1995) 159 J.P.419. (134) Rv Elson, lbe Times Law Report 30JLme 1994. (135) The Right Hon. Lord Justice Bingham, "Ibe Discretion of the Judge" [1990], Denning Law Journal p. 27 at p.41. Examples of cases where the trial judge too readily excluded evidence merely because of police breach of PACE and the Codes of Practice include: Rv Fennelley [19891 Crim L. R. 142 Acton Crown Court Rv Fogah ( 1989] Crim. L. R. 141 Snaresbrook Crown Court. Rv Williams [19891 Crim. L. R. 66. (136) Matto v DPP (1989) RTR 337. Rv Sharpe (1993) RTR 3 February 1993. Rv Nathaniel (1995) 159 J.P.419. Rv Smurthwaite f 1994] 1 AR ER 898. (137) Morrisv Beardmore [1981] A. C.446. (138) RvQuim[1995]Crim.

L. R. p. 56.

(139) Rv Nagah ( 1990] 92 Cr. App. Rep. 344. (140) For an example of pre PACE exclusion of identification evidence see Rv Leckie [19831 Crim. L. R. 543. (141) J. D. Jackson "The Insufficiency of Evidence based on Personal Impression" [1986] Crim. L. R. 203 at p.210. (142) Rv Chalkley [1998] 2 Cr. App. R. 79 C.A. (142) Rv Mason [198713 All E.R. 481 C.A. (144) Rv Christou [1992] 4 All E.R. 559 at p.564. (145) RvChalldey[1998]2Cr.

App. R. 79atpp. 105-106.

(146)

1. H. Dennis, "The Law of Evidence" 1999 at pp. 74-77.

(147)

D. Dixon, "Legal Regulation and Policing Practice" (1992) Vol. l. Social and Legal Studies, p. 515.

(148)

The Royal Commission on Criminal Justice Report (RCCJ) 1993, Chapter 2, 5, 10. page paragraph

(149)

1. H. Dennis, "The Law of Evidence" 1999, pp. 31-32.

(150)

ibid at p. 33. 54

(151)

Rv Khan [199613 All ER. 289 H. L.

(152)

[1996]3WLR162atp.

175.

(15 3) The Review of the Crown Prosecution Service: A Report, 1998, at p. 1. (154)

L. H. Leigh, "Police Powers in England and Wales" 1985 at p. 18.

(155) Rv Metropolitan Police Commissioner ex parte Blackburn [19681 1 All ER 763. (156) ibid at p.763. (157) ibid at p. 769. (158) L. H. Leigh, "Police Powers in England and Wales" 1985 atp. 19. (159) Rv Metropolitan Police Commissioner ex parte Blackburn (No. 3) [1973] 1 All ER 324. (160) L. H. Leigh, "Police Powers in EhgIand and Wales" 1985, at p. 20. (161) G. Robertson, "Freedom, the Individual and the Law", 1993 at p. 6. (162 ) ibid at p. 7.

55

CHAPTER

CONFESSIONS:

AN HISTORICAL

2

OVERVEEW

OF THE ISSUES

In this chapter it is proposed to examine confession law in England to show how it has developed from being exclusively concerned with the 'creditworthiness' issue to the modem state of the law which is influenced by considerations of the creditworthiness of confessions, the authenticity of confessions and legitimacy in the obtaining of confessions. (1)

The Creditworthiness

Confessions of

The traditional concern of the law of confessions was as noted, creditworthiness. More specifical-ly the issue was that a confession obtained from a suspect under law inherently justified that to rule unreliable a of was certain circumstances was so The those particular circumstances existed. old exclude a confession where 'voluntariness' rule singled out 'inducements', 'threats' and much later (2) 'oppression' Lord Sumner trigger the automatic exclusionary rule. should as circumstances wh-ich in Ibrahim vR (1914) said that 'logically' the fact of a threat of inducement preceding its but the to the that, and evidence not admissibility weight of a confession should go

"... from the danger of receiving such evidence judges have thought it better to reject it for the due administration of justice. " (3)

It should be noted however, that although creditworthiness was the rationale of the inadmissible law if in involuntary confession remained even voluntariness rule an The rule has been understood from a judicial perspective and by in (4) the terms of creditworthiness of confessions. securing commentators academic This view dates back to the old case of Rv Warickshall, where the judges palpably true.

commented, 56

"'A confession forced from the mind by the flattery of hope fear the torture or of comes in so questionable a shape when it is to be considered as evidence of guilt that no credit ought to be given to it, and therefore it is rejected." (per Nares J and Eyre B) (5) Lord Reid in the case of Harz (1967) (6) suggested that along with a concern for creditworthiness, the privilege against self incrimination lay behind the rule and Lord Diplock in Rv Sang (1980) (7) went further and claimed that the nemo debet prodere ipsum se principle was the sole justification for the voluntariness rule. Yet these isolated dicta arose extremely late in the history of a doctrine which had been for hundred involving two understood nearly years as solely considerations of credit. This concern still shapes the law of confessions although no longer in the guise of the /voluntariness' rule, see section 76 2(b) of the Police and Criminal Evidence Act for modem recognition of the creditworthiness of confessions problem. It is a truism that generally people do not confess to something they did not do in the absence of physical mistreatment or psychological abuse. On the other hand, modem has psychological research established that sometimes certain people confess to things they have not done even in the absence of physical mistreatment or psychological have Chapter 3. To this to realize that custodial understand abuse: see we interrogation is in itself 'inherently coercive' (8) as was recognised as long ago as 1966 by the Supreme Court in America in Miranda v Arizona. If in this context an inducement is offered or a mild threat made then the potential for a false confession to Lord Reid in As justify is to said an exclusionary rule. emerge sufficiently serious Harz on the cases where an inducement has been held to render a confession inadmissible:

"It is true that many of the so called inducementshave been have been influenced that no reasonableman would so vague by them, but one must rememberthat not all accusedare ignorant be they and may very reasonablemen or women, terrified by the predicamentin which they find themselves. So it may have beenright to err on the safe side." (9) The voluntariness rule was heavily criticized in the CLRC 11th Report and the RCCP 1981 Report as being overly concerned with whether a particular fonn of words, (i. e. be to that attention should paid more and confession threat/inducement) preceded a a threat to the posed a confession the police actually of or conduct words whether defects formulated Yet in 76 2(b). S. Hence the test the whatever of new reliability. it has be to unreliability the voluntariness rule as a prophylactic against confession

57

remembered that this was the only issue which the law of confessions was concerned with seriously prior to the enactment of PACE in 1984. The issue of the reliability of from in issue involved the a confession another separate way an of admissibility /voluntariness' issue. At common law there exists one other power to exclude a confession, which is part of the general discretion to exclude evidence whose prejudicial effect outweighs its probative value. This discretion was exercised to by in described Rv Stewart in (1972) (10) the exclude a confession circumstances trial judge as 'very exceptional'. In this case the suspect had a mental age of a five year old child and a mental condition known as 'echolalia' in addition; patently no trust could be placed at all in his confession although it might have caused great defendant if the jury considered the confession. This discretion the prejudice against is retained by S.82(3) of PACE. Whether a confession is reliable or not has traditionally been treated as a matter for the jury and apart from the limited reliability filter of S.76 2(b) the reliability of a confession is still a jury issue. It is only when a discretion is judge his the to exclude a confession patently unreliable should exercise do be To than to usurp the would confession as more prejudicial probative. otherwise function of the jury as assessorsof the credibility of evidence. The other main issue in the modem law of confessions, (apart from legitimacy') is the authenticity of a confession.

The Authenticity

Confessions of

This is the issue of whether the confession was actuallv made and if made, what its "Confessions" his in Mirfleld, this terms characterized on monograph were. exact issue as the 'confession issue' and commented,

"... it ariseswheneverthe defencedeniesthat a confession by by the to the prosecutionwas made accused attributed him. " ( 11) The problem this issue posed the courts in the pre-PACE era is explained by Mirfield,

"When a policeman statesthat the accusedmadean incriminating statement,the accused'swords being such how be denies this, the can we accused and such,and believed. is be " (12) to confident about who

58

The traditional approach of the law here was that questions as to whether the its jury before fact its in 'weight' the confession was and not made went to admissibility, see Ajodha v The State (1982) (13). As Mirfield points out, only at the extreme margin where no confession could possibly have been made, would the law intervene to rule out an alleged confession on the grounds that it was not actually made - see the case of (14) Rv Roberts (1953). Before PACE there was also the requirement

in

the Judges' Rules that

any

confession to

the police

be

contemporaneously recorded. In Rule IH it was stated, "Any questions put and answers given relating to the offence be must contemporaneously recorded in full and the record by if he by interrogating that the person or signed refuses " officer. There existed a discretionary power to exclude a confession for breach of the Rules, Rv Voisin first (1918), see which recognised this discretion (15) Yet confession evidence was rarely excluded for breach, even deliberate breach of an important provision such as accessto legal advice let alone a less important provision interview such as contemporaneous recording of an with a suspect. In effect then the question of the making of the confession was treated as a matter going to the weight its the to of confession not admissibility. To fully understand this approach of the law to the authenticity issue we must take by held judiciary high in the the the and public esteem which police were into account The if be least is 1970s. the the this: to the point police were start of at until fabrication by the then the trusted, alleged of confessions questions about generally be issue) 'verbafling' (the could satisfactorily treated as a matter going to the police fabrication its The admissibility. alleged of weight of an alleged confession and not intractable 1970's) by (pre the problem as to as such an police was not seen confession We discretionary can exclusion of non recorded confessions. require a policy of during inducements threats the and custodial problem of usefully contrast interrogation, with the authenticity problem. With regard to threats or inducements made by the police in interrogation, a in in terms problems of presents such such circumstances obtained confession inducement (i. the the the operative cause of confession, or e. what was reliability law No ) the that adopted a general rule of exclusion. such policy was conscience? issue fabricated The to the the the of whether police confession. needed with regard 59

police were to be trusted not to give perjured evidence about an alleged confession even in the absence of a contemporaneous and signed note of the confession as required by the Judges' Rules. An example of typical judicial attitudes to the police in the pre-PACE era is the comment of Winn L. J. in Rv Northam (1967) who said that the police were, " to be trusted in almost every single case to behave ... with complete fairness towards those who came into their hands " ... In the light of events which occurred only a few years later, such as the known mistreatment by the police of the Guildford Four and the Birmingham Six (16) this comment of Winn L. J. seems complacent in the extreme. Moreover, what also happened after Winn L. J. made the above comment was that the specific issue of fabrication police of confessions became a highly charged political issue between downplayed the those the extent of police deviance. Cox in critics of police and who "Civil Liberties in Britain" in 1975 commented that, "The quality of police evidence became increasingly in " (17) 1960s. the suspect Cox drew out the serious implications for civil liberties of this fact, "The quality of police evidence and its honesty is crucial because most people who are convicted are convicted by it. Much of this evidence relates to how an accused was detained, what was found on or near him and what he said is in interrogation. It these the police power abuse of under has that circumstances - arrest, search and questioning liberty intractable the problem most police/civil created in recent years." (18)

More specifically on the problem of police fabricating confessions, Cox continued, "The lack of supervision of police questioning makes it impossible to tell whether the frequent conflict of evidence between what the police officers say took place during interrogation is more accurate than the accused'sversion. The police have traditionally relied on their superior but by honest 1970 men and women; credibility as this was sufficiently in doubt for a prominent judge Mr. Justice McKenna to warn of the dangers publicly. " (19)

60

Cox then quotes McKenna J., who said to the Annual Conference of Justice in 1970,

"If (the police) agreeto tell an untrue story, they know each be will available to confmn the other's evidence- at the trial, and that the only written record will be their notebooks, book They identical in telling the each words. samestory know that they will go into the witness box asmen of good likely be believed. " to characters, It has to be pointed out that the law of criminal evidence facilitated somewhat the ability of the police to secure convictions on verballed confession evidence. For in Mallinson dependent largely Ry (20) the example, on alleged prosecutioncasewas defendant The his drugs oral confessions. appealedagainst conviction of possessing with intent to supply on the grounds that the conviction was unsafe becauseit had been securedon alleged oral confessions. 'nie Court of Appeal held that there was it... no principle to be gathered from the authorities of universal or general application that a conviction wholly or mainly resting on evidence of an oral confession be in It could never must every case safe or satisfactory. be a question to be decided on the particular facts." However, a rule of evidence requiring a confession to be corroborated before it could be to the to police sustain a conviction or a rule of evidence requiring a confession tape recorded before it could be admitted into evidence would in the former case 'verballing'by The latter in the the the police. possibility of case eliminate reduce and by is for improvement introduced PACE a major confessions authentication scheme from by the the police exemplified old principles of receiving confession evidence on Rv Mallinson which no doubt encouraged the police to attempt to attribute to the defendant a confession he never made. Fabricated confession evidence appears to have played an important role in at least two of the notorious miscarriages of justice four Six Birmingham In 1989-1992 the the the case of six men period. cases of but because that this was only alleged of admitted at trial signing written confessions the brutality of the police interrogation. However, two of the six, Hill and Hunter, denied At have trial they to the to police. making made oral admissions were alleged fabricated In had Rv McIlkenny them. that the the admissions and alleged police (1991) (21) the Court of Appeal quashed the convictions of all the Birmingham Six. No direct comment was passed by the Court of Appeal on the allegations of police fabrication of confessions by HiU and Hunter. In the Tottenham Three case, reported Raghip Silcott Rv (22), Braithwaite, Rv Silcott, Rv made no written or signed as have but he lengthy interrogations during to alleged made was some confession having he denied made. incriminating oral remarks, remarks which 61

In December 1991 the Court of Appeal quashed the convictions of all three men. In regard to the specific evidence against Silcott, ESDA tests showed that the Silcott interview notes had been altered. Since Silcott's alleged statements constituted the only prosecution evidence against him the court took the view that his conviction could not stand. Perhaps the single most recurring theme of all the revelations of miscarriages of justice is the presence of the excessively coercive interrogation of vulnerable suspects, however the separate problem of fabrication of confession evidence made an appearancein at least two of the cases. This issue of alleged 'verballing' became so charged that the RCCP noted in 1981, "The frequency of challenges to the police record of interview is said to make it essential to have some sort independently of validated record in order, in the eves of from fabricating to the others prevent police confe; sions or in the eyes of others to prevent those who have in fact made admissions subsequently retracting them." (23)

It is important to state that tl-lis was not only a one way issue with concern solely from emanating civil liberties lobbies towards police behaviour but also that the police resented unjustified attacks on their integrity by unfounded allegations at trial is 'verballing. It In the this that police are sensitive of well established on point. 1961 in the Criminal Law Review, reference was made to a Police Federation Police. 'Me in The Royal Commission 1962 the to the on editorial memorandum Criminal Law Review noted as follows, "One of the matters to which the Federation drew attention frequency defending the counsel and with which was 'false make allegations against the police of solicitors brutality, perjury and corruptioW. Policemen apparently feel strongly about unjustified attacks on their integrity. " (24)

R. N. Gooderson in his 1970 article "Tbe Interrogation of Suspects" noted that " the police are sensitive about their public image and ... damaging has taken place the effect of allegations of what " interviewing (25) they a suspect. were when

How much more sensitive are the police about such allegations at the present time

62

deceit due justice to the police given police corruption scandals and miscarriages of brutality light have to and which since 1970? come One good reason for the police to be sensitive about their public image is their dependence on public co-operation for the notification and solution of crime. As the RCCJ (1993) noted, "The proportion of crimes solved by the police without help of any kind from members of the public is negligible. " (26) The maintenance of law and order is critically dependent on public goodwill. The documentation procedure for interrogations and confessions established by PACE The direct Codes and was a result of the increasingly acrimonious public debate between the police and their critics over the verballing problem in the 1970s. With in Report RCCP (1981) pointed to to the regard verbal confessions, research quoted the fact that nearly all challenges to confession evidence were on the accuracy of the 2% alleged confession with only challenged on their alleged voluntariness (with for fewer being 10% the than position was reversed, challenged written statements 40% (27) their were attacked on alleged voluntariness). accuracy, whereas nearly The concerns in the 1970s over verballing, wWch fed into the RCCP Report and have influenced judicial PACE, into attitudes to police obviously subsequently breaches of the anti-verballing provisions of PACE. For example, in the case of Rv Hunt Stevn L. J. commented with regard to Code C, "The background to those provisions was of course a legislative intention that the evil public perception and a falsely incriminating statements attributing of police officers to persons in custody should be stamped out. " (28) In Keenan Hodgson J. gave a fuller and more balanced account of the purposes of

Code C: "... theseCode provisions are designedto make it difficult for a detainedpersonto make unfoundedallegations againstthe police which might otherwiseappearcredible. Second,it provides safeguardsagainstthe police inaccurately in inventing the words used questioninga recording or detainedperson the provisions are designedto make it ... difficult for defendant to make unfounded much more very a he has been 'verballed' that which appear allegations " credible. (29) 63

Hodgson J. rightly points out that protection of the police as well as of the suspect is an aim of Code C. Appeal casessuch as Rv Delaney Rv Keena and Rv Canale (30) illustrate that the judiciary are no longer prepared to accept the police version of what transpired at interrogation as there are mechanisms for the independent validation interrogation process.

of the

We have here in the authenticity issue, a clear example of how public perception of the police has influenced the law of confessions both in terms of the legislative scheme for recording set up in PACE and judicial attitudes to breach of that scheme through the exclusion of confession evidence or through the quashing of convictions because trial judges failed to properly take into account breach of the recording provisions by the police. Moreover, police concern for their own public image was also one major impetus for the reforms in recording interrogations established by PACE. P Mirfield commented in "Confessions" that,

"It is remarkable that English law has for so long left the largely the the problem of accuracy of record alone. It seems almost perverse that the Act introduces an exclusionary rule to ensure that a confession actually made is reliable but eschews use of the same technique to ensure that a confession attributed to the accused was actually made." (3 1)

Mr. Mirfield could not have predicted in 1985 that the English judiciary would police the verballing provisions of PACE by use of S.78 as a discretionary remedy for breach of those provisions. Indeed in Delaney Lord Lane said that since the court was deprived of a record of interrogation by the police the prosecution could not satisfy the burden of proof under S.76 2(b) to show that the confession was not obtained due to unreliability inducing police methods and therefore the confession should have been excluded as a matter of law. The defence alleged that the police downplayed the low IQ. Lord to the of a offence suspect person very of serious sexual seriousness Lane said he could not properly adjudicate on the S.76 2(b) issue in the absenceof an The question of the record of the independent record of the interrogation. (32) interrogation is not only relevant to the discretion to exclude under S.78 but also has

64

from dramatic This is law 76 issue S. 2(b). the relevance to the change a of under common law position.

The Le2itimacy

Confessions of

The third issuethat hasmoulded the modem law of confessionsis what can loosely be termed'due process'concerns. This is a much more characteristicallymodem concem than either the 'creditworthiness' issue or the 'authenticity' issue. The 'due process' be follows: concem can statedas "How should the law of confessions respond to the fact that the suspect is interrogated in the detention of the police, and fact " to the that the also police are a state agency? Herbert Packer in his seminal American work "The Limits of the Criminal Sanction" (1968) refers to due process as a value system which views,

" efficiency in the suppression of crime as subordinate ... to the protection of the individual in his confrontation State. " (33) the with That confrontation with the State begins, according to Packer. with the arrest of the by the police and ends with the verdict at trial. suspect

It might be argued that the law of confessions can help to ensure that the 'citizen as by in is through to the civilized treated a society acceptable manner police a suspect' in discretions to the use of exclusionary rules and exclude a confession obtained breach of minimwn standards of behaviour set for the police in their treatment of RCCP (1981) Both CLRC (1972) this in the the recognised and custody. suspects basic point asjustly impinging on the law of confessions. (34)

fact due law is in to that the This 'due process'strand confession simple a modem one in in England interrogation was not of a suspect custody the permissibility of police fully concededat an official level for at least 130 years after the founding of the new Judges' Rules 1964). Rule I (see in 1829 the of revised of police

65

This is not to say that the police could not legitimately question suspectsbefore arrest in by does it imply to the that confessions voluntarily made a suspect police nor custody were not admissible. The official line, at least until the revised Judges' Rules of 1964 was that the interrogation of suspects in custody was not a legitimate police practice. Yet it is only legitimate interrogation in is when police can the of a suspect custody accepted as 'due process' questions of how the suspect is to be treated in interrogation and the law's response to that, be sensibly asked. If police interrogation of suspects is not accepted as legitimate then establishing the limits of fair interrogative practices is a redundant issue. The permissibility of police interrogation of a person in custody was an open question in his least Lord Sumner in Ibrahim Lordship recognised that case. spoke at when as ýFhe Royal Commission on Police Powers and Procedure in 1929 said that interrogation of persons in custody was hn-iited to the Metropolitan Police and a few forces but that, other city "The great majority of police forces to judge by the evidence before us follow Lord Brampton's advice at least to the fundamental principle governing their actions." (35) (on Lord Brampton's advice see the previous chapter) The 1929 Commission concluded that, "It is desirable to avoid any questioning at all by Report is justified in in Custody"' (36) the to the this reference persons of it. (37) the to the need protect and of suspect privilege against self-incrimination Custodial interrogation is inconsistent with respect for the privilege against selfincrimination of the accused according to the 1929 Commissioners. If however., the is seen as merely a privilege against compelled privilege against self-incrimination between interrogation is then there not necessarily a conflict self-incriminatory speech for is ipsum debet there the always option of principle, the se prodere nemo and interrogation. legitimate face lawful in the police and of remaining silent The uncertainty about the legitimacy of police interrogation of suspects in custody C. Professor J. Smith into 1960s thatq the the of comments witness early continued "There is one quite fundamental question concerning the Judges' Rules to which there appears to be no clear forbid Rules Pohce Do the to question the answer. do in they merely advise them that persons custody or 66

if they do question such persons, the answers may be inadmissible in evidence." (38)

However, by 1972 the CLRC reported the view,

" that the police should be able to questionsuspectsin ... is for be thought to custody now generally necessary the due administration of the law." (39) The position prior to the 1960s seemsto have been that though the status of police interrogation of suspectswas uncertain in law it was in fact practiced by the police to the point where Professor Smith in 1960 recognised that whatever the official position, "... it would not be surprising if Dr. Glanville Williams' Rules habitually disregarded is that the view are correct" (40) and that

"... it would seem almost inevitable that the rule prohibiting by board. " (4 1) the questioning generally should go

We know also what the general approach of the courts was to non observance of the Judges' Rules in terms of the exclusion of confession evidence. Rule I of the revised Judges' Rules of 1964 established the legitimacy of the interrogation of suspects in it decision House Lords' in HolgateAlthough the custody. was not until of Mohammed v Duke (42) closely followed by S.37 of PACE that detention for the law. Section PACE 37(2) the the sanction of of purpose of questioning was given states that,

" the personarrestedshall be releasedeither on bail or ... has bail, the reasonable without unless custody officer being for believing his detention that without grounds is charged necessaryto secureor preserveevidencerelating to an offence for which he is under arrestor to obtain such by him. " evidence questioning

With the gradual acceptance of the legitimacy of police interrogation arose the best how "What to safeguard the rights of a suspect who the rights and are question of is being questioned?" Indeed, not only was police interrogation increasingly seen as legitimate but it became to be officially recognised. as a necessity - thus the RCCP commented,

67

"'Me evidence submitted to us all leads us to the conclusion that there can be no adequate substitute for police questioning in the investigation and ultimately in the prosecution of " crime. (43) If police interrogation was officially viewed as a necessity then the question of how best to safeguard the rights of suspects in custody became a political imperative. Hence the RCCP (198 1) notion of a 'fundamental balance' between the interests of the community in the suppression of crimes and the interests of suspects. Of course the Judges' Rules attempted to provide some regulation of the policesuspect encounter in interrogation but it is important to remember that the 1912 Rules were not clear on whether interrogation was permissible. Also, the Rules were by the police to clear up ambiguities about the proper course of originally requested conduct in relation to persons in custody and the admissibility of statements made by suspects. A. T. Lawrence J. in Voisin (1918) commented, "In 1912 the Judges at the request of the Home Secretary, drew up some rules as guides for police force These have law, the they officers. of rules not directions. the are administrative of which observance ) the police authorities should enforce on their subordinates fair is justice. It tending to the as administration of important that they should do so, for statementsobtained from prisoners contrary to the spirit of these rules may be by " Judge the trial. the presiding at rejected as evidence (44) As has been noted, this discretion was rarely exercised in the accused'sfavour. RCCP (1981) said that the Judges' Rules,

The

it... represented a first conscious effort within the pre-trial balance between the need to procedure set out a considered to protect the rights of the individual suspect and the need to give the police sufficient powers to carry out their task." (45) However, we need to treat this statement with caution. Firstly, the Rules were issued for the guidance of the police rather than explicitly as a safeguard for suspects. Secondly, to say that the Rules were 'a conscious effort to set out the rights of the individual suspect' is an empty claim for the only meaningful way those 'rights' could be protected was through the discretionary exclusion of confessions where there was a breach of those rights, but this rarely happened.

68

The central due process notion of authoritatively setting out the rights of a suspect in police custody was only finally achieved in the RCCP Report of 1981. Of course the CLRC in 1972 had made a nod towards the notion of decent and fair treatment of The law in in that the the suspects police custody and regard. role of of evidence CLRC said, "Even the most cogent evidence may be rejected because of the way in which it was obtained ... a suggestedreason (besides possible unreliability) why a confession is inadmissible unless proved to have been voluntary is the discourage improper to the need use of means to obtain It is confessions ... admittedly questionable whether the be by mentioned object should secured restricting the by disciplining than admissibility of evidence rather those responsible, but we do not think that we can leave this object out of account and we have had regard to it in our recommendations about the admissibility of evidence in confessions." (46) The CLRC continued, "We do not think it would be right or acceptable to public inadmissibility to to where make any exception opinion there has been oppression." (47) However, the CLRC made no comprehensive attempt to reconcile the social need for for be interrogate the to the the police to rights of suspects social need suspects with stated with certainty and authority. A sim-ilarity the RCCP Report shares with the CLRC I Ith Report is on the need for a by for Again inadmissibility police methods. oppressive obtained confessions rule of this is not justified

by concerns about reliability

but reflects modem due process

concerns:

"... in order to mark the seriousnessof any breachof the rule prohibiting violence, threatsof violence, torture or inhuman or degradingtreatmentand society'sabhorrence of such conduct,non-compliancewith this prohibition lead to the automaticexclusion of evidenceso should " (48) obtained. be best S. 76 2(a), from this The provision which emerged can concern, namely due The is justified section not process concerns. understood as a provision enforcing by reference to reliability for the provision says that where there is oppression.

69

"... the court shall not allow the confessionto be given in far him in as the prosecution evidenceagainst except so doubt beyond that the the to reasonable proves court be it (notwithstanding that may true) was not confession obtained as aforesaid." Moreover if a concern for reliability is behind the oppressionhead it is hard to see why a separatereliability test is provided for in S.76 2(b) PACE. It is important to remember that the concept of 'oppression' was only incorporated as part of the exclusionary rule by Parker C.J. in Callis v Gunn (1964). This was a fairly late development in the long history of the exclusionary rule and it is by no means clear that 'oppression' was understood originally as being directed towards ensuring that the suspect was treated in a civilized manner by his interrogators. In Rv Priestley (1965) and Rv Prager (1972), (49) the courts seem to suggest that it is a concem with the suspect's privilege against self-incrimination which lies behind the ban on oppression in interrogation. Reference is made in those cases to oppressive questioning overbearing the suspect's will and leading him to speak when otherwise he would have remained silent. Of course the privilege against self-incrimination is but 'due the real objections to the part of concept of process' as commonly understood 'oppressive' methods of interrogation are independent of the privilege against selfincrimination and have to do with basic standards of decency in the treatment of The RCCP to. stated that the which civilized society should aspire suspects any from be had to the right not subject to oppression, other rights apart suspect " the right not to be held incommunicado, the right to ... legal advice, the right to be fairly interviewed and to be for. " (50) properly cared In illustrating the contrast between pre and post PACE approaches of the judiciary to the notion of suspects' rights, perhaps the right to legal advice is the most dramatic legal for by Rules Judges' The the obtaining of advice contained a provision example. do Rules Rules Judges' Preamble that the the to the the not affect stated suspects: principle that, be investigation should stage of an person at any every ... able to communicate and to consult privately with a " 1) (5 solicitor. However, access was routinely denied and the alleged 'right' was rarely supported by by Baldwin McConville, discretion to judicial exclude, as pointed out and who a 70

commented in 1979, "It is clear then that even in principle the 'right' of access to a solicitor during police interrogation is far from absolute: it is qualified by the provisions as to unreasonable delay hindrance or and the courts have shown themselves reluctant to exclude evidence merely because it has been in breach obtained of the Rules." (52) Yet since the introduction of PACE we have had the judicial pronouncement in the Court of Appeal that the right to legal advice is "one of the most important and fundamental rights of a citizen" per Hodgson J. in Rv Samuel (1988). Where there is between denial a causal relationship wrongful of the S.58 right and a confession then exclusion under S.78 is a strong possibility (unless the suspect is already aware of his rights - see Rv Alladice and Rv Dunford). Lord Lane in Alladice suggested that faith in bad deny access to legal advice exclusion of a confession the where police be in would easy even the absenceof a causal connection. "If the police have acted in bad faith the court will have little difficulty in ruling any confession inadmissible under S.78 if not under S.76." (53) Under the old law even deliberate breach of access to legal advice was rarely treated discretion the the to exclude evidence as affecting admissibility of a confession under legal in Judges' denial Rules. The the obtained violation of of advice to the suspect law before the the to the the jury. under old ordy went usually confession weight of However, the right to legal advice is now viewed as an essential part of the procedural for for increased the the the suspect which was protections quid pro quo and clarified has in PACE. Professor Leigh As pointed out, the power of prolonged police powers detention for questioning which PACE bestowed upon the police was cruciaUy dependent on promises being made in Parliament during the debateson the PACE Bill free for legal in legal improve the to aid scheme advice the police station. (54).

In conclusion, it can be seenhow the English law of confessionshas evolved into its its the authenticity of a confession, present complex state where questions of issues legitimacy its the which go to the of obtaining are all reliability and form S. 76 in the of an exclusionary rule evidence either admissibility of confession 2(a) or S.76 2(b) or in the form, of the exclusionary discretion S.78. This complexity has recently receivedhigh judicial recognition by Ralph Gibson L.J. who commented

71

"The rules relating to the questioning of suspectsand to the admissibility and faimess of evidence of admissions have reached a degree of much complication which can give direction for difficulties the those to of entrusted with rise " (55). trials. criminal

In the following chapters it is proposed to consider in depth each of the framing concerns behind modem English confession law: authenticity, reliability and legitimacy (56) (57).

72

Footnotes to Chapter 2 Confessions: An Historical Overview of the Issues Section 82(l) of the 1984 Act defines the term "confession" to include "any statement wholly or partly adverse to the person who made it ... whether made in words or otherwise". Ihus a partial admission to an element in an offence would constitute a "confession". For a discussion of the rationale of the admissibility of confessions see J. C. Smith" Exculpatory Statements and Confessions" [1995] Criminal Law Review, p.280. (2)

"Oppression" was added to the rule by Lord Parker in Callis v Gunn [1963] All ER 677.

(3)

Ibrahim vR [1914-15] All ER. p. 874 at p. 878.

(4)

See Wigmore on Evidence Volume III Criminal Law Review, p. 15 and p. 19.

(5)

Rv Warickshall (1783) 1 Leach 163.

(6)

Commissioners of Customs and Excise v Harz and Power [ 196711 AC 761 at 820. p.

(7)

Rv Sang [ 1979] 2 AH ER I 22' at p. 1230. Lord Diplock commented that 1/rMe A- 61underlying rationale of this branch of the criminal law, though it may have been based originally on ensuring the reliability of confessions is in my view, now to be found in the maxim nemo debet prodere se ipsUIA no one can be required to be his own betrayer".

(8)

Miranda v Arizona (1966) 348 US 436.

(9)

Lord Reid in Commissioners of Customs and Excise v Harz and Power 119671 AC 761.

(10)

Rv Stewart (1972) 56 Cr. App. R. 2716. Generally speaking in assessing the be probative value of a confession attention will paid to whether the is in detail it kmwledge, 'intimate confession rich and whether contains any be known by Inherently the the offence. perpetrator of which could only improbable matters mentioned in the confession will be a warning as to its in be the confession with the unreliability as will any striking omissions known facts of the offence. Inconsistencies within the confession and with be facts known the that confession may unreliablewill also signal other

(11)

P. Mirfield "Confessions", 1985, p. 1. Sweet and Maxwell.

(12)

P. Mirfield "The Future of the Law of Confessions" [1984] Criminal Law Review at p.63.

(13)

Ajodha v 'nie State [ 1981] 2 All ER. 193.

(14)

Rv Roberts [1953] 2 All ER. 340 quoted at pp. 1-2 of "Confessions" Mirfield do In Rv Roberts J. I Devlin "If is think that there not commented, op. cit. fit his jury I to to the that they statements go are shall rule them any evidence deaf have Roberts, to a mute was alleged made an oral confession to out". the police. 73

in 330 Andrews at p. and

1963]

(15)

Rv Voisin (1918) 13 Cr. App. R. 89. The Binningham Six case is discussed in great detail by C. Mullin "Error of Judgement"' 1990.

(17)

B. Cox "Civil Liberties in Britain" 1975, Chapter 4, p. 171. ibid.

(19)

ibid at p. 175.

(20)

Rv Mallinson [19771 Criminal Law Review, p. 161. C.A.

(21)

Rv McIlkenny et al (1991) 93 Cr. App. R. 287. Interestingly GudJonsson has for in 1987 that testing the shown of suggestibility and cornpliance six men Hill low facTmen Hunter that the revealed and scored very whereas other high to scored medium on the same scale. For Hill and Hunter then fabrication of confession rather than force to obtain a confession may have been the police tactic in 1974. For results of the test see G. Gudjonsson, '"Me Psychology of Confessions" at p. 271. The test illustrated that suggesdibility is a highly stable personality trait over long periods of time.

(22)

Rv Silcott, Brathwaite, Ragbip. Times Law Report, December 9th 1991. Court of Appeal.

(23)

RCCP, paragraph 4.2.

(24)

[1961] Criminal Law Review 283.

(25)

R. N. Gooderson "Ibe Interrogation of Suspects,(1970) Vol. 48 The Canadian Bar Review 270 at p. 294.

(26)

RCCJ 1993 paragraph 23, p. 7.

(27)

RCCP 1981, paragraph 4.8.

(28)

Rv Hunt [1992] Crim LR 582.

(29)

Rv Keenan [ 1989] 3 All ER 598 at p. 604.

(30)

Rv Delaney (1988) 88 Cr. App. R. 338. Rv Canale (1990) 91 Cr. Appý R. 1.

(31)

P. Mirfield "ConfiDssions" 1985, p-218.

(32)

Rv Delaney [1989188 Cr. App. R. 338 at p. 342.

(33)

H. Packer "The Limits of the Criminal Sanction"', p.4.

(34)

CLRC 1972 at paragraph 60. RCCP 1981 at paragraph 4.112.

(35)

Royal Commission on the Police 1929, paragraph 162.

(36)

ibid, paragraph 165.

(37)

ibid, paragraph 164.

74

(38)

J. C. Smith, Questioning by Police: Further Points -1 Review, p. 347.

(39)

CLRC 1972, paragraph 52.

(40)

J. C. Smith. Questioning by Police - Further Points -1 [1960] Criminal Law Review at p. 349.

1)

19601Criminal Law

ibid.

(42)

Holgate-Mohammed v Duke [1984] AC 437.

(43)

RCCP Report, paragraph 4.1.

(44)

Rv Voisin [1918] 1 KB 531.

(45)

RCCP 1981, paragraph 1.21.

(46)

CLRC 1972, paragraph 17.

(47)

ibid, paragraph 60.

(48)

RCCP, paragraph 4.132.

(49)

Rv Prager [ 19721 1 All ER 1114. Rv Priestley (1965) 51 Cr. App. R. 1

(50)

RCCP, paragraph 4.77.

(51)

The Judges' Rules [ 1964] All ER p.237.

(52)

Baldwin and McConville, "Police Interrogation and the Right to see a Solicitor" [ 1979] Crin-dnal Law Review, p. 145.

(53)

Rv Alladice (1988) 81 Cr. App. R. 380 at p.386.

(54)

L. Leigh "History of the Police and Criminal Evidence Act 1984" in "Public Law and Politics" edited by C. Harlow, 1986 p. 91 at p. I 11. Leigh comments, "It seems clear that improvements to the legal aid scheme were of capital importance in procuring acceptance of the institution of detention for questioning".

(55)

Per Ralph Gibson L. J. in Halawa v Federation against Copyright Theft (1995) 59 J.P. 1817.

(56)

It should not be presumed that the creditworthiness issue, authenticity issue in issue legitimacy A any mutually exclusive given case. particular are and for both to problems of, example, creditworthiness and case may give rise legitimacy or for example both legitimacy and authenticity. A defendant may by illegitimate into he induced that means making a confession was allege defendant fact in may allege that a police officer wrote untrue or a which was forced he into tricked or signing. was out a confession which

(57)

it is important to distinguish confessions to the police or other parties pre-trial from a plea of guilty at trial, such a plea of guilty being a confession of fact. Confessions to the police or a third party pre-trial are not conclusive of guilt, they can be retracted, explained or denied. However, a plea of guilty in court has a different status from a confession to the police. In Rv Rimmer [ 19721 1 75

WLR 268, Sachs L. J. commented, "A plea of guilty has two effects: first of it fact; is it is all a confession of such a confession that without secondly further evidence the court is entitled to, and indeed in all proper circumstances be it in A retracted will act upon and result a conviction". guilty plea can only at the discretion of the court, not the defendant and the casestend to show that the discretion should be sparingly exercised in favour of the accused, e.g. see Rv McNally [ 195411 WLR 933.

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CHAPTER 3 THE CREDITWORTHINESS THE CONTEXT

OF POLICE

OF CONFESSIONS; INTERROGATION

Introduction

This chapter will examine the context of police interrogation as a backdrop to the issue of the creditworthiness of confessions,then there will be a discussion of the false false typology reasons why suspects might make of confessions and a be discussion There interpretation then the confessions. will of a of meaning and Section 76 2(b) of PACE. The next section will look at possible underlying theories last look The Section 76 2(b). at the admissibility of of exclusion under section will psychiatric and psychological evidenceunder Section76 2(b).

The context of potice interro2ation

The Benthamite response to the problem of the creditworthiness of confession be issue to the view as always going to the weight that the court evidence would in law has been, English to see the to than the the position as attached evidence rather issue as going in certain circumstances to the admissibility of the evidence. The Benthan-lite would see no reason to accord confession evidence any different status from any other piece of relevant evidence. 'ne basic test of relevancy that Bentham be issue, the would an seldom admissibility of evidence constructed as a condition of for a statement by the accused implicating himself in the offence with which he is him. Wigmore doubt is to the against wrote, case relevant charged without

"The policy then should be to receive all wel-l-proved jury, leave in them the to to confessions evidenceand discrediting to circumstances,to receivesuch subject all " (1) weight as may seemproper. Wigmore seems here to make an exception with regard to admissibility for having in i. "well the senseof not proved", e. not authentic confessionswhich are not been made at all. The issue of "authenticity" is a separate issue to which this thesis 4. in Chapter will return

77

Ile

issue of the creditworthiness of confession evidence provides a good example of the deficiencies of the Benthamite approach to the law of evidence. The Benthamite theory ignores as a question going to the admissibility of confession evidence, the complex psychological and sociological processes which produce confession evidence from interrogation. However, the law should respond to this problem in terms of the admissibility of confessions to further the goal of safeguarding the innocent against conviction. It is extremely doubtful whether this goal can be adequately realised by an approach which allows for the free admissibility of confessions. Furthermore, the Benthamite perspective ignores the requirements of the political morality of our society which insists that in certain circumstances the state should not rely on apparently reliable and relevant evidence to secure a conviction of This guilt. point will be developed in the chapter on the legitimacy (2) of confessions, but a fairly obvious example would be a confession obtained by torture. No civilized system of justice should allow a conviction on this kind of evidence. For the Benthamite, how evidence is produced or elicited is a matter of weight of the before the trier of fact. evidence It is the context of police interrogation of suspects in order to procure a confession that is the background to the provision of Section 76 2(b) in the Police and Criminal Evidence Act 1984. As Wolchover and Heaton Armstrong comment in their monograph "Confession Evidence". (3) "Most confessions are adduced as the product of questioning rather than as spontaneousutterances by the pronouncement of suspicion or arrest. provoked The study of confession evidence as a psychological integral is therefore with that phenomena necessarily dynamics interrogation: it is impossible the to of of in isolation of the process of study confessions " them. obtaining This process of police interrogation and certain dubious police tactics in interrogation The Criminal Law the threat to reliability of confessions. presents a potential Revision Committee in 1972 commented,

"Personswho are subjectedto threat, inducementsor falsely; juries are particularly oppressionmay confess apt to attachweight to such a confessioneventhough the evidenceof the threat, inducementor oppressionis before them; consequentlythey must be prevented from knowing of the confession." (4)

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The reasons why suspects might make false confessions and a typology of false confessions Research has illustrated (see for example "The Case for the Prosecution" by M. McConville, A. Sanders and R. Leng (5)) that the police view interrogation as being primarily aimed at securing a confession of guilt through questioning rather than being an open ended inquiry into the truth of the suspect's involvement in the alleged future Baldwin As J. interrogation "is crime. comments, police rather concerned with than past events" (6) i. e. that police interrogation is used by the police as a means of for in involvement than the obtaining evidence of use court rather actual establishing the suspect in the alleged crime. Given that this is how the police view interrogation important (for the the and vulnerabilities of certain suspects concept of an account of interrogative suggestibility, see G. Gudjonsson "The Psychology of Interrogations, Confessions and Testimony" (7)) the possibilities of a false confession emerging from the police-suspect interaction in interrogation is not an insignificant one. A dangerous in potentially combination of overbearing police officers, overly confident the suspect's guilt and frightened, confused and perhaps mentally ill-handicapped interrogation the suspects, explains why of suspects can present a major threat to the has Barry Irving (8) commented that, reliability of confession evidence. is a two-way process in which the "Interrogation ... information. The interrogator lets the participants swap find he know he is to wants out when suspect what dissatisfied with answers, where he requires extra detail, when he wants to understand connections between he believes disbelieves his and what what or statements, information " to the are. attitudes This process can lead the suggestible suspect to adopt the police account of events. Of Arn-istrong's confession it has been said " if Armstrong sang like a canary it was ... Four, Guildford him" had (9). Armstrong, the taught the as one of police a song false basis his in fifteen the confession. of years prison on served The importance of the psychological research undertaken by Gudjonsson, Mackeith in have do is threats to the that violence of violence or engage not police and others is from interrogation for false inducements this to so and confession emerge a nor use handicapped in ill is if or other ways the suspect nor mentally not mentally even by in itself Mere deficient. the police, such as psychological manipulation mentally false be low to to a elicit a confession can enough self-esteem suspect's on a playing from Gudjonsson in and person police custody. a normal very serious offence Mackeith (10) in a research article. "A Proven Case of False Confession: 79

Psychological aspects of the Coerced-Comphant type", draw attention to a recent English case where a 17 year old youth falsely confessed to two murders of old ladies who had also been sexually assaulted. The confessions took place during police interrogation of the youth whilst he was not legally represented. The youth was of average intelligence and he suffered from no mental iUness and his personality was not obviously abnormal. (A coerced-compliant confession means one where the does freely for but suspect not confess some and voluntarily rather confesses immediate instrumental gain such as to escapepolice pressure or police authority. ) This confession was subsequently by chance proved to be false. Another individual confessed to the crime and was convicted for it. The youth had spent 11 months on remand though for the crime. The false confession appears to have resulted from excessive psychological manipulation and verbal pressure of a young man who was at the time distressed and susceptible to interrogative pressure. Guqjonsson and MacKeith comment,

"The youth's self-esteem was clearly manipulated, by detective his the particularly senior who played on failures alleged with girls. The most serious confession (i. e. the murders) followed immediately upon this kind of manipulation. " (11)

Excessive psychological manipulation of a normal suspect in the context of police detention and interrogation is therefore capable of eliciting a false confession. Threats of violence or the use of inducements do not present the only threat to interrogation the of norinal suspects. confession reliability with Section 76 2(b) of PACE can be viewed as a direct response to the particular threat to the reliability of confessions posed by certain police tactics in the interrogation room. Of course threats to the reliability of a confession can derive solely from the suspect himself without the need for any police misconduct or manipulation. A false dubious interrogation from tactics where no normal police confession may emerge have been used; the confession may still be false because of a specific vulnerability drugs drink influence is the or of particularly suggestible or under of the suspect who false "voluntary" There is ill. is the confession, concept of a also mentally or who Gudjonsson (12) known is to comments psychologists. which now well

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"Voluntary false confessions are offered by individuals from the police. without any external pressure Commonly these individuals go voluntarily to the have inform the that they police station and police in " the question. committed crime The question then arises as to why does S.76 2(b) limit the judicial enquiry into the reliability of the confession to those cases where there is a causal link between the potentially unreliable confession and "anything said or done" by the police which is conducive to unreliability? The reason for the limitations of S.76 2(b) is because of the degree of danger to the reliability of confession evidence obtained by certain police tactics in interrogation. Confessions so obtained suffer from systemic defects in terms of their reliability. In contrast with confessions made spontaneously to the interview police or confessions given voluntarily or confessions given under nonnal conditions there is no such systemic danger of unreliability, and therefore there is no justification for a rule of exclusion where there is a possibility that such confessions false. are

There is some truth in the old common law assumptionthat in the absenceof threats inducements or no one of sound mind would confess unless they were guilty of the for law Rv Lambe Rv Warickshall (1783) (1791) (13) old common offence, see and based the upon the common sense authorities on great probative worth of confessions have done. likely is they to to that not confess something observation a person not Of course that old common law assumption is in need of some corrective analysis in false history in light the the of confessions of recent psychological research and England. A voluntary false confession is always a possibility and there are plenty of baby false Lindbergh to the the the confessions many genre, e.g. examples of kidnapping case in the 1930s in the USA. (14) In England the Home Office Forensic Scientist Professor Keith Simpson wrote in his false that confessions, voluntary autobiography "... are a well known phenomenon in well publicized being doubtless to provide a murder cases,,the motive little colour in an otherwise dull life. In a case of fewer in 1956 in Hertfordshire than three no mine had before I had 'confessed' time to notoriety seekers from London; thirty the miles police station only reach " I (15) had immediately I was called. set out and be false ill These people who make not always mentally voluntary confessions may or 81

suffering from a severe personality disorder. For example, a person may make a false voluntary confession to the police in order to protect somebody else, e.g. a close relative, from conviction for the crime. Gudjonsson has commented that with regard to juveniles, confessing to protect someone else from criminal responsibility may be common. (16) There is also a possibility of a false confession emerging from normal police interrogation and detention, this could be so even where the suspect is not mentally ill nor suffering from a personality disorder. Guqjonsson comments, (17), "False confessions are not confined to the mentally handicapped or the mentally ill. The view that individuals apparently normal would never seriously incriminate themselves when interrogated by the is police totally wrong and this should be recognised by the judiciary. " Custodial interrogation is in itself inherently coercive and this may be inherently too for falsely because much pressure certain vulnerable suspectswho confess of the mere fact of interrogation. The Stevan Kiszko case providing an example of this Kiszko because he to the phenomenon. confessed murder of a young girl was frightened of the police and wished to go home to his mother. There was no by improper he the suggestion of pressure police although crucially was not interviewed in the presence of a legal advisor. He was mentally backward. His by he Court Appeal in 1992 the of after evidence showed conviction was quashed discretionary here be killer. it is However, the the that argued powers of the could not judge are adequate to deal with the problem of unreliable confessions which arise from those defects which lie within the suspect solely, such as psychological from interrogation by than the techniques the use of unethical vulnerabilities rather police. A full taxonomy of the different kinds of false confession is provided by G. Gudjonsson in "The Psychology of Confessions, Interrogation and Testimony" (18) but the three main types are the aforementioned voluntary and coerced-compliant false confessions and the coerced-internalized false confessions. With the coercedfor immediate false the a perceived suspect confesses confession compliant instrumental gain, such as release from police custody and "the perceived immediate long-term the consequences ... suspects perceived and uncertain gains outweigh later, believe their the truth that that or solicitor will will come out somehow naively be able to rectify their false confession." (19) 82

The coerced-internalized false confessor comes to believe during police interrogation, Such in have if belief is later lost, the this a that they question. even crime committed distrusts his linked distrust is "memory the to confession suspect a syndrome" where own memory and is also linked to high trust in the police and the honesty of their account of events.

Section 76 2(b) of The Police and Criminal Evidence Act 1984

Section 76 2(b) was enacted in order to replace the old voluntariness rule of the law common and although it is not proposed now to give a history of that rule (on this few Chapter 2 this thesis) see of a points are worth noting at this stage of the discussion. First of all the voluntariness, rule recognized that confessions made under certain circumstances are so systemically unreliable that an exclusionary rule was justified to rule out a confession whenever those circumstances existed. 'Mose circumstances were the impact on a suspect of certain methods of questioning which in his "involuntary" therefore to and suspect terms of were such as render confession Those creditworthiness. methods were those which employed threats and inducements, and, at a later stage of the development of the rule, "oppression". Section 76 2(b) of PACE was a clean break from the common law but S.76 2(b) follows the voluntariness rule to the extent that the demarcation between admissible focusing defined by inadmissible is on certain undesirable, confessions and both law To interrogation. inducing this the extent common methods of unrefiability insights incorporate important 76 2(b) S. about the reliability of psychological and in that way superior to the confessions made under certain conditions and are Benthamite approach, which would see such circumstances as going to the weight of

the confessiononly. The second point to make is that the voluntariness rule was arbitrary to the extent that it only took regard of inducements, threats and "oppression" in the context of interrogation as bringing into operation the exclusionary rule. Section 76 2(b) in focuses on, contrast likely in done the which was said or anything ... circumstances existing at the time, to render unreliable him in be by might made any confession which " thereof. consequence

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This is more satisfactory in that it acknowledges that in the inherently coercive nature of custodial interrogation other police tactics apart from inducements or threats or Ifoppression" could affect the reliability of confession evidence. For example, an unlawful denial of legal advice to a person of low IQ could well lead to an unreliable confession being made: see the case of Rv McGovern (1991). which concerned the denial 2(b). legal 76 (20) S. the unlawful of advice and operation of The third point to make about the voluntariness rule is that it had ossified to the extent that even the mildest threat or inducement could lead to the confession being ruled inadmissible. In contrast, S.76 2(b) brings the issue of unreliability inducing police tactics to the fore by asking whether any confession which the accused made was likely to be unreliable. The focus now is on the potential of the interrogation methods to affect the reliability form had before of confessional evidence, not as of words on whether a particular been used by the police in questioning the suspect. It is therefore not the case that the lead inducements to the making of prior suspect making a confession, will necessarily to a confession being excluded under S.76 2(b). The section requires the trial judge to determine whether the inducement was in the circumstances existing at the time such Therefore, likely to render any confession made unreliable. not all as was inducements will fall foul of S.76 2(b) since not all inducements are likely to have an in CLRC As 1972 explained, the the the suspect'sconfession. reliability of effect on "If the threat was to charge the suspect'swife jointly with him, the judge might think that a confession even of a be be likely If to there unreliable. serious offence would bail to visit a sick to the accused on was a promise release family, judge his the might think that this member of be would unlikely to render a confession of a serious likely do in but to so the case of a minor offence unreliable offence. " (21) Section 76 2(b) is modelled on a proposal made by the CLRC in 1972 although the S.76 2(b) test is wider than the CLRC test, in that S.76 2(b) refers to anything said or

done, whereasthe CLRC limited the test to threatsor inducements. A contrast can then be made between the type of police method in interrogation which brings S.76 2(a) into operation and the type of police tactic which brings S.76 2(b) into operation. S.76 2(a) is directed at absolutely prohibited interrogative techniques These threat the the violence. core prohibited practices. of are or violence as such

S.76 2(b) is directed at another range of tactics such as the use of inducements,the 84

in The down these tactics playing use of of the seriousness of a serious offence etc. interrogation by the police does not necessarily render a confession made following their use inadmissible. However, there is a possibility that in the circumstances of the 76 S. lead inadmissible judge their trial to the case under use may a rule confession 2(b). 1herefore the police must be careful in their use of inducements whereas in contrast the police must never use violence or the threat of it in interrogation. Section 76 2(a) and S.76 2(b) therefore differ in the strength of their injunction to the police interrogative in 76 2(b) "any However, S. to the about certain reference methods. confession" prevents S.76 2(b) from being a straightforward test on the effect of interrogation methods on the reliability of the confession at issue. It is proposed to detail later for in in in S. 76 2(b) this thesis the this analyse phraseology reasons focuses hypothetical which attention on a confession rather than the actual confession made. It needs to be emphasized that Section 76 2(b) is not a straightforward test on the The between of a confession. section reliability requires a causal relationship "anything said or done" by the police or others and the confession before the for Thus, exclusionary rule operates. example, a confession made perfectly fact false, by fall ill individual is in voluntarily a mentally which would not within the discretion S. 76 2(b). Perhaps the prejudicial effect probative value or the operation of Section 78 discretion could be used to rule such a confession inadmissible but it is not in language S. 76 2(b) to the the of operate such circumstances. nor purpose within The case of Rv Brine (1992) (22) is an example of where the Court of Appeal said S.78 should have been used to rule an unreliable confession inadmissible. In Rv Brine S.76 2(b) was held inapplicable becausethe predisposition to stress the accused him "anything internal interrogated to and not said or was something suffered when done" to him for the purposes of S.76 2(b). The judgement in Rv Mackenzie (23) handicapped by for further mentafly suspects confessions made safety net provides a law is independent This in test their of a common reliability. which are unconvincing S.76 2(b) and requires the trial judge to withdraw the case from the jury where a is forins that the the prosecution case and confession an substantial part of confession handicapped by person. a mentally unconvincing one made Before a detailed consideration of S.76 2(b) is attempted it is proposed to analyse the by interrogation the to police creditworthiness of confessions particular threat following; importance it important is the At to the the great of note outset methods. determines large Criminal Justice System English to the to a confession evidence degree the kind of interrogative approach to suspects that the police will take.

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If confessions mattered much less to the Criminal Justice System then it is likely that the various pressures put on suspects to confess by the police would be reduced. However, the police are put under strong pressures by the criminal justice system to

secure confessions (for various administrative and proof reasons) and this in tum translates into strong pressures being put on suspects to confess in police interrogation. The context of the "admissibility of evidence" also generatespressure on police to obtain confessions. Ibe point is that not all information about an offence in the handsof the police is admissiblein evidence. The police themselves value confessions as being a 'quick route' to a conviction. This has been by view strengthened a judiciary, who in the past as Michael Mansfield Q.C. points out, "have commonly told juries that they could have no better form of evidence" (24) than a confession. American research on the effect of a confession on juries suggests that they are more influenced by a confession than by an eye witness's identification. Kassin and Wrightsman comment, g

"Our researchleadsto the conclusionthat juries are heavily influenced by the presenceof a confessionas part of the prosecutor'sevidence." (25)

This fact is likely to be part of the knowledge of police culture. Moreover, many lead for to the the police to attend court as confessions a guilty plea obviating need for to witnesses or gather other evidence use by the prosecution. Much police time is by likely increase This is to the desire of the potentially saved obtaining a confession. interrogation, increasing through thereby the to police obtain an early confession interrogation through the pressures on reliability of confession evidence obtained as being the possibility of undue pressure placed on suspects, pressure well as raising is in be "oppressive". It order to understand the significance of vital which might S.76 2(a) and S.76 2(b) of PACE to appreciate the role of confession evidence in our justice system. criminal This is to reflect an important point made by Professor Twining (26) in 1978, who in for integrated the role of confessions analysis of confessions, analysing an urged

the criminal processas a whole, "... becauseof the concentrationon the exclusionaryrules, literature the on confessiontreats nearly all of existing retractedconfessionsas the norm; yet retractedconfessions surely representonly a small minority of confessions. Typically neither the scholarly literature nor public debate 86

balanced gives a and realistic total view of the role of for in the confessions example, the criminal process; important significance of confessions as an stage en route to a guilty plea. Evidence scholarship has failed to give a systematic account of confessions in criminal process as phenomena. As a result, it provides no clear answers to such questions as who confessesto whom about what in form under what conditions.) what and with what results? Yet it is difficult to seehow one can hope to make sensible informed judgements about the issues of policy relating and to confessions and interrogation without at least tentative " to working answers such questions. Twfi-iing offers this as a useful example of the deficiencies of most Evidence Scholarship at that time, namely that the literature by focusing on the rules of fact-firiding issues the evidence neglected among other systematic study of institutions and processes. Confessions cannot be properly understood unless their justice in the overall role criminal system is grasped. It is often and rightly assumed that custodial interrogation is inherently coercive. At a basic level, no one can enjoy the prospect of being questioned against their will in alien surroundings. However, it is important to recognise that the intensity of the psychologically coercive pressures imposed on suspects by custodial interrogation is not a fixed invariable. Wbilst all is intensity interrogation "inherently the coercive" of the psychological custodial function be importance interrogation in the the a part of of strategy of coercion must in This is in importance hence the to police a particular country. part confessions and derived from the demands of the criminal justice system itself. Given that the criminal justice system imposes these pressures on the reliability of is important it that the system provides some mechanism of quality confessions interrogation filter those to police which tend to threaten the out methods of control be long Section 76 2(b) in in the this run. can understood reliability of confessions by to police provide a quality control on confessions obtained way: as an attempt interrogation, a method of obtaining evidence which is required by the system itself.

It is unlikely that forensic scienceevidencecould provide an alternativeto reliance on has (27) Walker C. recently written. as confessionevidenceas a sourceof proof, "Given that forensic science evidence is available in only 1:200 casesand that resources do not stretch to its analysis hope in the that science may and use all possible cases, provide an antidote to the police construction of criminality forlorn. interrogation, through seems especially

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The requirements of a criminal law dominated by subjectivist mens rea proof issues also makes confessions indispensable to the criminal justice system. As the Scottish jurist Dickson recognised as long ago as 1887,

"... the peculiar value of confessionalevidencelies in its furnishing the best proof of the intention which constitutes the essenceof most crimes." (28)

It may also sometimes be the case that the obtaining of a confession may be the only way of proving an offence. A good historical example of that situation is the in March 1950 of the atomic scientist Klaus Fuchs for treachery. Fuchs conviction fourteen from the Lord Chief Justice Lord Goddard. received a year sentence Goddard's biographer comments of the Fuchs case, (29)

"He had made a full confession. Without it there could have been no prosecution for the security services could not lay hands on a single witness to the crimes committed. "

Studies from the United States show that confession evidence is the only evidence for in 30% available about of prosecutions child sexual abuse. It may also be the case that alternative techniques for investigating offences present their own problems for the criminal justice system. Kent Greenawalt criticizes the simplistic notion that "increasing reliance on confessions would replace more reliable less intrusive techniques of criminal investigation". Greenawalt comments, (30) "In some casesalternative techniques simply cannot kinds Moreover, typical of proof such as suffice. some less be identification reliable may often eye witness than admissions. Also some 'alternative' techniques such be informers even more and electronic surveillance may as intrusive on individual liberty than pressuresto answer in Still that the systems argument remains questions. is heavily there a tendency to on confessions relying by independent than establish guilt overbear suspects rather " means.

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The Interpretation

76 2(b) Section of and possible underlying exclusion under Section 76 2(b)

theories of

As the casesof Rv Goldenberg (1988) (3 1) and Rv Crampton (199 1) make clear, the focus of S.76 2(b) is on police methods of interrogation which are likely to have an adverse effect on the reliability of confession evidence so obtained. The section does not apply where the defect, i. e. the threat to the reliability of the confession lies solely within the suspect. Thus in Goldenberg and Crampton the police engaged in the interrogation of drug addicts in the stages of withdrawal. There were suggestions by the defence that they may have confessed in order to get bail so as to obtain supplies drug. The their of purpose of S.76 2(b) is not to rule inadmissible confessions made whilst the suspect was experiencing the abnormal stress and pressure which is an inevitable part of custodial police interrogation. In Rv

Crampton it was held that it was doubtful whether the mere holding of an interview when the appellant was withdrawing from drugs was "something done" within the meaning of Section 76 2(b) of PACE. In Rv Goldenberg it was held that the words "said or done" in Section 76 2(b) did not extend so as to include anything done by the person making the confession; the reasoning of the court was that said or by use of the preceding words "in consequence" in the subsection it was clear that a link between done had be the to causal what was said or subsequent confession and done" Accordingly "'anything shown. said or applied only to something external to the person making the confession and as was stated by the Court of Appeal "no done by the the police"', therefore the trial at said reliance was placed on anything or in Court held Moreover Rv Crampton Appeal the that of confession was admissible. there was no reason for the judge to have excluded the confession in the exercise of Goldenberg the trial judge had ruled its the that outweighed probative confession's prejudicial effect against a submission judge "also Court Appeal The that the was right to rule against was satisfied of value.

his discretion under S.78 of PACE.

In Rv

the submission that the prejudicial effect of this evidence outweighed its probative value". The decisions in Goldenberg and Crampton have attracted some adverse academic

in Court Rv Appeal Birch Professor the the that of approach of comments criticism. Goldenberig

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it... produces the odd result that where D. is given a drug by a police doctor prior to confessing, the test for drug is from be different the where admissibility will " (32) self-administered. In the first case, where the police doctor gives the drug, S.76 2(b) will apply; in the second case where the drug is self-administered S.78 will apply. It is not an "'odd if for focus 76 is, S. 2(b). The the to repeat, on result" one considers rationale inducing unreliability police methods of interrogation and where the police administer drug to a suspect prior to interrogating him then this is precisely the kind of a 76 2(b) is designed S. deal to situation with. Where the police merely interview in happens be Codes Practice in the that to someone accordance with of and person the stages of withdrawal from drugs then it is strongly arguable that S.76 2(b) is not in interview Holding in accordance with the Codes of this applicable situation. an Practice cannot be, consistently with the rest of the PACE Act, a practice which is by 2(b). S. 76 The legitimates PACE Act covered police interrogation so long as it is in accordance with the Codes of Practice; it would be inconsistent, if holding an interrogation in compliance with those Codes was to be rendered nugatory by the S. 76 2(b) law. judge Of the of a under exclusion confession rule of course a always has the discretion to rule out a confession if its probative value is outweighed by its Tl-ýs is if have been fully Codes Practice the so even of prejudicial effect. complied for is judge in However, this take the case to an exceptional measure a and with. for discretion Rv is this to the existence support of confessions, which often quoted Stewart (1972) the facts of the case were described by Mr. Recorder Hawser as "very difference between is in 'Mere a considerable scope saying that a exceptional". is interview drug in Codes from the addict compliance with an with a confession be law 76 2(b) by S. the that the same confession might rule of and saying covered discretion. by inadmissible the effect use of probative value prejudicial ruled It was expressly denied by the Court of Appeal in Rv Crampton that the mere holding of an interview at a time when the appellant is withdrawing from the done is is heroin within the meaning of something which addiction symptoms of Yet still it might be argued that interrogating people who are be done" It drugs is "something from to the can vulnerable suspect. withdrawing likely drug is in interrogating withdrawal state a people who are obviously argued that from kinds being lead those long to many unreliable confessions in the term to made Section 76(2).

from be deterred by S. 76 2(b) the that, therefore police should and suspects of in Crampton Stuart-Smith Rv However, in pointed outý as engaging such a practice.

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"Ibe mere fact that someoneis withdrawing, and may have does for a motive making a confession, not mean the is " (33) necessarily Lmreliable. confession

report of a Home Office medical working group has commented, "Many confessions given in withdrawal states are reliable.. "

and conunentedalso that be symptoms and signs of mild opiate withdrawal may ...barrier to interview whereasseverewithdrawal may no render an addict unfit to be interviewed." (34)

This medical opinion seems to be in accord with judicial doctrine on the subject. In R Rennie (1982) Lord Lane L. J. commented that a reliable confession is often made v for a variety of motives, including remorse and a desire to terminate the interrogation early. Lord Lane C.J. commented in'Rennie, "Very few confessions are inspired solely by remorse. Often the motives are mixed and include a hope that an lead if it to early admission may an earlier release ... were the law that the mere presence of such a motive ... led inexorably to the exclusion of a confession, nearly be inadmissible. " (35) every confession would rendered

Interestingly, this dictum seems to find some support in empirical research by I Gudjonsson and Bownes into "The Reasons why Suspects Confess during Custodial data from Northern Ireland". (36)

They conclude after a survey of due to more than one single that most suspects confess offenders who confessed, facilitative factor, Interrogation:

"The three facilitative factors, External Pressure(such fear Internal of confinement), as police persuasion and Pressure (an internal need to tell the police about their deed) (the perception of proof where criminal and proof the subject believes there is no point in denying the his involvethe prove allegation as police will eventually by degrees in ment) were varying endorsed all subjects for indicates the that to police which a suspects confess for than variety of reasons rather any one reason. However, for any given suspect one group of factors is likely to predominate. " 91

It is however, the suspect's perception of the proof that the police have against him which is the most potent cause of the making of confessions. It is for this reason that the police may be tempted to lie as in Rv Mason about the state of the evidence lied in Heron (37) Indeed, Rv to the the the notorious case of against police suspect. Heron about him being seen at the scene of the crime by alleged witnesses. It was this factor amongst others that persuaded the trial judge that the interrogation of Heron had been "oppressive" and that his confession was therefore inadmissible under S.76 2(a). Gudjonsson has recently documented another dramatic effect of the police lying to a suspect about the state of the evidence against him and that is that a vulnerable suspect may actually come to believe he has committed an offence. In an article entitled "How eagernessto please can result in a false confession", Gudjonsson documents (38) an English case where a vulnerable twenty-five year old man who was described as someone "who could easily be made to say anything to get away from the situation he could not handle", confessed during police interviewing to having started a series of fires. The interesting feature of the case is that the hallmarks false This is "had the confession of a coerced-internalized confession". a false confession where the suspect actually comes to believe the police account that the suspect committed the alleged offence. Gudjonsson comments that, "T'he case illustrates the process whereby such confessions in can certain circumstances occur quite easily with individuals. The suspect's psychologically vulnerable his eagernessto please the salient vulnerabilities were: investigating officers; firm trust in the police and great for lack in his them; memory of of confidence respect high " suggestibility. events, and A crucial feature of the case was that police officers lied to the suspect about alleged had impact in This him the the an persuading the crime. at scene of witnesses seeing he have he though the could not clearly offences even must cornn-litted suspect that doing Gudjonsson comments, so. remember

"Mr. Jqthe suspect,told the author that when he arrived at the police station he went into the kitchen areaand was interviewed there by the police officers; this interview was him The to make a tape-recorded. police wanted not had they that witnessesto say that statementand claiming fact In fire him had to no such they set a caravan. seen 'Me police officers seemedvery sure witnessesexisted. done it he had him kept Js Mr. that telling on guilt and of drink and that they were there to help him. They said that it was not a very seriousoffence and oncehe had owned up he home. Mr. J. it he that to after a while claims could go beganto believe the police officers, thinking that he must have conm-iittedthoseoffenceseven thoughhe could not having done " so. remember 92

A dangerousconsequenceof police lies in police interrogation is hereby illustrated. Lying by the police is particularly insidious becauseas the visible symbols of lawful authority and as agents of the law, they are presumedto be honest and truth-telling individuals. Vulnerable individuals may well take at face value anything the police tell them; this fact could well lead to the production of false confessions,as the case by GudJonsson illustrates. It can be arguedthat many suspectswho mentioned above make a confession may have various motives for doing so, yet it is not clear that because there may be another explanation for the confession as well as guilt solely that the jury should not be allowed to assessthe confessionand decide for themselves what reasonor reasonsfor the confessionthe suspecthad. A too broad interpretation S. 76 2(b) of which only requires the police to interview with propriety a vulnerable before the section applies, would take too many confessionsaway from the suspect deliberations of the jury and would be contrary to the intention of Parliament in passing S.76 2(b) (on this point seethe chapteron "Reform of the law of confessions" Chapter 6). If the desire to secure an early release from police custody was induced by something by S. 76 2(b) then the police said of course could well apply to rule out any subsequent law. do desire However, induce the the to confession as a matter of not where police home but desire has S. 76 2(b) the then the go early still exists within no suspect, be basic It doctrine of the law of criminal that the should remembered applicability. is is for jury. that the the the assessmentof credibility of evidence normally evidence In Rv Mackenzie Lord Chief Justice Taylor commented, "The question whether the circumstances raise doubts as to the reliability of any confession is a question of fact. It would therefore normally be a matter for the jury to decide." (39)

Of course, individual vulnerabilities of the suspect can be taken into account in deciding the S.76 2(b) question but it requires also some behaviour from the police holding interview" in beyond "mere is the with of an a suspect accordancewith which the Codes of Practice. In Rv McGovern (1990) even though the actual confessionto by defence be Court to true, the the of a very serious crime, murder.,was admitted Appeal excluded the confession under S.76 2(b), which illustrates very dramatically but is focus the the truth the on the of actual confession that the subsection not on of by inducing hypothetical certain unreliability confession obtained reliability of a facts McGovern 'Me tactics. of reveal a mix of suspectvulnerability and police ,Rv factors by Both into Court Appeal these taken the were account of police misconduct. 93

in excluding the confession. The suspect was six months pregnant at the time of the interrogation, she was of limited intelligence (IQ of 73) and was very emotionally distressed at the time of the interrogation. The police had wrongfully denied the suspect legal advice, a right she should have had under S.58 of PACE. Farquharson L. J. in the Court held, Appeal of

"This court is clearly of the view that even if the confession first interview was true, as it was later admitted the given at to be, it was made in consequenceof her being denied accessto a solicitor and is for that reason in the circumstances likely to be unreliable We think that if a solicitor had been ... present at the time this mentally backward and emotionally upset young woman was being questioned, the interview have been halted on the very basis that her responses would be would unreliable. " (40)

Farquharson L. J. made it clear that, "... the fact that the confession was in substancetrue is expressly excluded by the Act as being a relevant factor. " (41)

A combination of individual vulnerabilities and police misconduct can bring S.76 2(b) into play even where the actual confession is true but individual vulnerabilities of a does suspect not in itself bring S.76 2(b) into play, that is clear from Rv Goldenberg Rv The Crampton. focus is not on the objective reliability of the confession, and rather it is on the conduct of any police officer or another person to whom the confession was made. This is not to say that the police officers need to be in "bad faith", by what they say or do to the suspect, indeed in Rv Delaney the officers were faith, in acting good yet the Court of Appeal said that S.76 2(b) should have been by judge the trial to exclude a confession where there might have been an used inducement offered to a suspect of very low I. Q. However, a 'mere interview' held in full accordance with PACE and the Codes of Practice is not enough to bring S.76 2(b) into play. Indeed if it did it would introduce a contradiction into the PACE scheme, for then perfectly proper police behaviour in interrogation would lead to inadmissibility as a matter of law for certain confessions. The discretionary exclusion is different is those same confessions an altogether matter, since no contradiction of in behaviour PACE that although arguing police conformed with a confession present is as a matter of discretion too unreliable to go before a jury.

94

However, the use of a case by case exclusionary discretion for confessions obtained by unreliability-inducing interrogation methods would run the risk of allowing into the trial too many false confessions because judges as fallible beings would make mistakes as to the reliability of a particular confession. This perhaps helps to explain why the focus in S.76 2(b) is on "any confession" and that a confession can be excluded "notwithstanding it may be true". This urges the judge to be ultra cautious before admitting a confession that may have been obtained by unreliability-inducing police methods, hence the judge's focus should be not on this actual confession but 'any' confession the suspect may have made as a result of those dubious police methods, 'any confession' being a much more stringent test than focusing on the actual confession. Perhaps the reason for the hypothetical language is that judges are likely to admit fewer false confessions by mistake by applying the hypothetical test rather than by focusing on the actual confession and its reliability. The main point though, is that only an exclusionary rule of law is capable of flaws deep in from has trial type terms the a of evidence which criminal safeguarding Confessions obtained by the use of strong inducements or threats or excessive psychological manipulation are likely to be I-ligh-lyunreliable.

its of general reliability.

It might be asserted though that the danger to confession reliability posed by certain for is be However, jury in this the to a assess. principle one police methods should being danger jury Birch Professor Indeed the to the refers of not misguided argument. by dubious the police to weight of a confession obtained properly assess able methods, "Section 76 merits a separateexistence becauseit is declaratory of the effects of a particularly common and dangerous form of unreliability resulting from things Common interrogation done in the process. said or because there is always a risk that defendants under interrogation might make unreliable statements in order because juries are dangerous halt the process and to believed to put too much faith in confessions obtained " (42) interrogation. under

interrogation the be through that one of are (It must obtained confessions remembered before forms the the that risks court: so criminal appear of evidence recurring most 76 S. Birch Professor ) that in comments this type of evidence are magnified. inherent 2(b) reflects these observations,

95

"Thus it is provided that any suspicion of unreliability lead The this to of nature must exclusion. strength of the fear behind the provision can be seen from the fact that the section does not even concern itself with actual hypothetical be is the to unreliabidity: question put a one concerning the reliability of any confession made in those circumstances." (43)

It can then be argued that the language of S.76 2(b) represents sound policy, that is, a wish to be ultra cautious with this kind of evidence which is systemically unreliable liable to carry undue weight with the jury if admitted. The problem for this and interpretation of S.76 2(b) is that where there is no risk of the actual confession being unreliable the confession may still be excluded. For example, in Rv McGovern (1990) the defence admitted the confession was true yet the Court of Appeal still quashed the conviction becausethe trial judge had failed to apply Section 76 2(b) properly. It is hard to square this decision with the view that sees S.76 2(b) as being an exercise in caution by focusing attention on a hypothetical rather than the actual confession.

A rival interpretation

of the underlyin2 theorv of exclusion under Section 76 2(b)

There is. however, a rival interpretation of the purposes of S.76 2(b). ) Zuckennan puts it as follows,

A. A. S.

"It may be said that the legislature was using the hypothetical form in order to create a normative test factual According than to this view the rather a one. hypothetical is the phraseology to encourage aim of the court to concentrate its attention on the propriety of the standards of interrogation rather than on their effect judge has Thus the to pass the particular accused. on judgement on whether the methods an evaluative likely long by in the the run of cases police are adopted to have an adverse effect on the reliability of confession." (44) on this view S.76 2(b) has a deterrent rationale: it aims to influence police behaviour in terms of their interrogation tactics by ruling inadmissible any confession,

96

notwithstanding the actual confession may be true, that may have been made as a result of unreliability inducing police methods. If the police wish to have confessions admitted in evidence then they must on this theory, pay attention to the methods/techniques they use in obtaining confessions. An example of police tactics which it is desirable to deter is where the police offer inducements to suspectsto make confessions. In Rv Phillim (1987) the Court strong of Appeal considered that when the police told the appellant that if he confessed other

offences would be "taken into consideration" then the trial judge should have excluded the confession under S.76 2(b). It should be noted however, that if the suspect asks the police what will happen if he legitimately for inform him then the that confesses police can example other offences be into for bail. taken that the may consideration or police will not oppose example (This represents a change from common law, where such infon-nation given to the suspect by the police might have been considered an inducement and therefore any confession subsequently made would have been inadmissible - this was so even where the suspect requested the infon-nation from the police. ) This situation is provided for by Paragraph 11.3 Code C: "No police officer shall indicate except in answer to a direct question, what action will be taken on the part of the police if the person being interviewed answers questions, do to makes a statement or refuses either, then the officer inform the person what action the police propose to may take in that event provided that action is itself proper and " warranted. If this is the sequence of events rather than the police prompting the suspect to likely happen he does it is if him by informing then not confess, of what will confess here is it has 'Me S. 76 2(b) that sequence of events crucial and may no apphcability. be that trial judges will insist on a tape recording of the interrogation to resolve any between the police version of the sequenceof events and the suspect'sversion conflict of the sequenceof events. There is however, a more straightforward explanation for the hypothetical has (45) Tapper C. 2(b). Professor 76 S. stated recently phraseology of

"The legislature realised that simple reference to the likelihood of unrehability was likely to be unsatisfactory, ) forcing disadvantage have the that of contingent would since 97

the judge to make a preliminary decision on the very issue that the jury would have to decide at a later stage. In an effort to avoid this consequencethe unlikelihood of by from issue insulated in the unreliability was confession hypothetical by that accused to reference a confession made fortified in distinction those the person very circumstances, by reference to the possibility of the real confession being true despite the hypothetical one being false.

It is hard to believe that this artifice hashad the slightest judges the trials, that effect on courseof and are studiously from their the confessionbefore them, and averting gaze insteadconcentratingon what nýdghthave beensaid falsely, however much they believe this one to be true."

Tapper's main point is that the decision as to the reliability of the confession has traditionally rested with the jury. It would be inconvenient then if at the admissibility decide hence had issue, judge to the phraseology of the the on precisely stage same S.76 2(b) which is not focused on the actual confession, rather on a hypothetical one. This may or may not explain the phraseology of S.76 2(b) but what cannot be has is Tapper's language 76 S. 2(b) that the remark of not accepted without question had an effect on the course of trials and that trial judges will focus on the reliability of the actual confession and not the reliability of the hypothetical one. In Rv Kenny (1994) (46) the trial judge admitted a confession made by a mentally handicapped individual who had not been interviewed in the presence of any appropriate adult judge despite Practice C. Para. The Code 11.14. trial that the to ruled of contrary breach of the Code he was sure beyond reasonable doubt that the admissions were into The Court Appeal them evidence. of quashed the reliable and admitted had his judge that trial the the not addressed mind to the right grounds conviction on he What He the confession was or was not reliable. considered whether question. in done have the circumstances the confession, true to was consider whether should done likely in to render any which was consequenceof anything or not,) was obtained beyond being burden the to the prosecution prove on confession unreliable, it doubt that was not so obtained. reasonable If trial judges are, as Tapper suggests, focusing on the actual confession rather than have likely illustrates, Kenny Rv their they to hypothetical then, are as the confession decisions overturned on appeal. Rv Cox (1991), provides another illustration of judge the the the admitted reliability of confession, trial actual considered where a decision by Court Appeal had his the the then ground of on overturned and confession is S. 76 2(b) but it is that concerned with. potential unreliability that not actual

98

The deterrence/disciplinary theory of excluding evidence is normally associated with ensuring that the police comply with standards of behaviour set out in a constitution or a code of practice, or to ensure that the police respect private rights (such as the right to be free from unlawful search and seizure) by excluding evidence obtained in violation of such rights. However, there is no reason why the technique of deterring the police through exclusion of evidence should not be attempted to ensure the goal of The theory seeks to improve the long term reliability of confession reliability. confessions by attempting to influence police behaviour through the exclusion of confession evidence. Yale Kamisar, writing in the 1960s in the U. S.A. drew attention to two reliability standards, one standard focused on the reliability of the actual confession made in the light of police tactics; the second standard focuses on a separate issue, the effect of police tactics on general confession reliability. Kamisar wrote, "First, taking into account the personal characteristics of the defendant and his particular powers of resistance, did the police methods create too substantial a danger of falsity? Second, without regard to the particular defendant, interrogation the are methods utilized in this case sufficiently likely to cause a significant number of innocent persons to falsely confess, that the police should not be permitted to in proceed this manner." (47)

This second reliability standard asks the question what is the likelihood objectively interrogation in that the this case create a substantial considered methods employed falsely that to them risk a person subjected will confess - whether or not this particular defendant did? This "deterrent-reliability" interpretation of S.76 2(b) would certainly focus hypothetical the the explain on confession that the suspect may have made he did in the than that actual confession rather make that section of PACE. It can also be if, in Rv McGove the actual explain why a confession should excluded even as because better is it is is is This that true. a conviction sacrificed in order to confession deter the police from employing such reliability threatening tactics in the future. Of host difficult theory raises a questions about the technique of using of course such a the law of evidence to deter the police. For example, "do the police pay attention or decisions? " "Is in the they not aware acquittal of guilty, even of court as are McGovern too high a price to pay for such a speculative exercise as deterrence?" Ilese questions are difficult ones, to which we wiU return later in this thesis. However, P. Mirfield has directly questioned the deterrent efficiency of S.76 2(b) of PACE:

99

"Particular decisionsunder the rule would seemunlikely to discouragepolice practiceshaving a tendencyto produce decisions be Such unreliable confessions. would specific, fact related and available to the police at best only through the law reports. Scepticismabout deterrenteffects seems justified here." (48)

However, it may be that Mirfield is overstating the case against the deterrent effect of S.76 2(b). It is true that some casesusing S.76 2(b) to rule confessions inadmissible have been very specific and fact related, for example in Rv McGovern great stress laid fact that the girl was mentally ill and actually physically ill at the time the was on her interrogation; she had been vomiting in her cell as well as being six months of lessons for No denial legal the to pregnant. general police about wrongful of access for the suspect could be learnt from Rv McGovern. Tlie case turned on its advice particular facts as much as the denial of legal advice. It may be possible to be more deterrent the optimistic about effect of exclusionary rules in confession cases where the rules are not "fact related" as in S.76 2(b) but are clear and general as in, for for inadmissibility introduced in U. S. by A. the the on example, confessions rule Miranda v Arizona (1966). In that case Warren C.J. laid down precisely and clearly what measures the police should take before commencing interrogation, including informing the suspect of this privilege against self-incrimination and his right to be it S. 76 2(b) However, that counsel. may can also send out effective messagesto the police about the need to avoid certain interrogative practices. The fact that McGovern was "specific and fact related" does not mean that all cases will be so. S.76 2(b) is also applicable to more general techniques that the police are often tempted to employ to obtain confessions. There are types of tactics such as offering involve inducements threats to to charge or members of the suspect's confess or strong family, which need to be deterred as being unconducive to the long term reliability of be 76 2(b) S. used to send strong signals to the police that these types can confessions. in being likely Unlike to tactics result a confession excluded. are of psychological future in is interrogation to virtually always engaged with a view unlawful searches, is hence interrogation, the exercise of search powers, unlike court proceedings and likely to be more responsive to the deterrent effect of exclusionary rules. Oaks (49) who, in his research into the deterrent effect of the exclusionary rule on the his that illegal the about great scepticism commented seizures, search and exercise of deterrent effect of the illegal search and seizure rule, Mapp v Ohio, did not in deterrent'efficiency the to the rules context of of exclusionary apply necessarily in be Police behaviour interrogation interrogation and confessions. may open police loo

to more influence because the purpose of interrogation is usually to obtain confession evidence for use in court. This contrasts with the great variety of reasons why the have police may conduct a search and seizure operation, reasons which may nothing to do with securing evidence for use in court but may involve a desire to harass known criminals or to confiscate certain kinds of contraband or other illegal material. However, the deterrent effect of exclusionary rules in the context of the interrogation of suspects may be substantially weakened by the phenomenon of the guilty plea following a confession in the police station. As this is a major feature of the English Criminal Justice System it will inevitably be the case that most interrogations will not be reviewable by the courts and hence some policemen may reason that they can risk flouting the exclusionary rules in order to obtain a confession. Peter Lawrie in his study of Scotland Yard in 1970, commented on this situation, of a guilty plea pulls down the curtain on all past transactions. ... There can be no complaints about the arresting officer's behaviour and no haggling over the Judges' Rules." (50)

Section 76 2(b) does have an application to the particular unusual case where certain because the threaten tactics reliability of a confession of specific vulnerabilities police in the suspect, but S.76 2(b) also applies to the general case where, for example, the is incentive If S. 76 2(b) have to to a suspect confess. police offered a powerful be likely in by Rv Phillips (1987) the the then police will courts as applied correctly inducements invites improper the that the the to receive use of general message final has be S. 76 is interpretation 2(b) There that to of a exclusion of a confession. Ph. D in Stein forward by Stein (51) A. thesis. that an unpublished put considered, defines it thus, that S.76 2(b), " distributes the risks of error surrounding confessions ... ... the principle of risk-distributive equality requires the courts to enforce the general standards of interrogation with rigorous irrespective of the effect that a particular nonconsistency had have the the on might standards one of compliance with from a particular reliability of a particular confession, elicited it improperly, has been If obtained suspect. a confession because be the the with non-compliance excluded should standards would unjustifiably aggravate the risks of error borne by the defendant if this confession is admitted. "

dangers interrogation that of on this view, given carry great certain methods of police be be it to to allow a confession inducing unreliable confessions would unfair The "outlawed" in those were used. risk of where methods case particular a admitted 101

had been by be to a wrongful conviction admitted, which allowing a confession obtainedby the disapprovedof methods,should not be bome by the defendant. The risk that his confession is false, even if only sfight, is not a risk he should be because bear. is his This to expected of right to equality with the way other suspects and their confessions are treated by the courts.

However, this theory, although it can explain why the focus is not on the actual confession rather than the hypothetical confession, it cannot explain the situation where there is no risk at all of the actual confessionbeing false and yet S.76 2(b) can inadmissible it Rv McGovern important this still rule point, where the on. - see defenceconcededthat the confessionwas true, yet the Court of Appeal still invoked S.76 2(b) to quash the conviction. It is by no means clear why "risk distribution" principles insist that the confessionin McGovern should have been excluded - since there was no risk of error. If the point of risk-distribution principles of exclusion is to from the judge making a mistake as to whether to admit the protect an accusedperson evidence as reliable, then why insist on exclusion where there is no risk of the being confession unreliable, as in Rv McGovern? It would seem then that the most plausible interpretation of S.76 2(b) is the deterrence-reliability principle which seeks to influence police interrogation tactics by have been tactics excluding confessions where unreliability-inducing used to obtain the confession, and this goal is unaffected by whether the actual confession before the judge is true, possibly true, or false.

The Admissibility

Psychiatric Evidence Psychological Section 76 the of and on

2(b) issue

There have been interesting developments concerning the admissibility of 76 2(b) Section PACE of which psychological and psychiatric evidence under illustrates that the judiciary are well aware of the potential for police interrogation to from Indeed it important is be to vulnerable suspects. confessions produce unreliable judiciary's impact the the of psychological research upon changi g aware of for false interrogation its producing and potential confessions. perceptions of police Gudjonssonand Haward commentý(52)

102

"In recent years a significant contribution has been made by detennining in the psychological psychological expertise interrogative vulnerabilities and circunistances which render invalid. " confession potentially a

This research has impacted upon the judiciary. commented in 1996:

As Sigurdsson and GudJonsson

"During the past decadethere hasbeenincreased judiciary the that wrong convictions recognition among from false may result confessionand psychological vulnerability. Corre, a solicitor and a stipendiary magistrate,arguesthat much of the changein recognition judiciary due is important the to among psychological work in this areaduring the past decade." (53)

In the case of John Roberts jailed in 1983 for the murder of Daniel Sands (The Times, Friday March 20th, 1998) the conviction was overturned after psychometric tests false Roberts had been denied to showed was vulnerable making confessions and during his interviews. In judgement Lord Justice Henry to proper access a solicitor commented, "Medical science and the law have moved a long way hope We in 1982. that the safeguardsnow place since becoming will prevent others victims of similar misjustice. " (54) carriages of

Lord Justice Henry also said the situation had been changed by the development of latterly the courts, accepted as the tests medical profession and which psychometric capable of providing a measure of suggestibility.

As Gudjonsson and Haward commený " .. of ftindamental significance" (55) with increased the to receptive attitude of the courts towardspsychological evidence regard in confessioncaseswas the caseof Raghip. This casewas reportedas Rv Silcott and for brutal for three the (56) the males murder of conviction and concerned others during Tottenham In Raghip's 1985. Blakelock P. C. the the riots of appeal murder of

borderline demonstrating I. Raghip's Q. (full scale psychological evidenceconsistedof I. Q. of 74) and his abnormal personality traits (high suggestibility and compliance) his to the to the of undermine reliability confession police. considered were which

103

The judges My

findings Raghip's the conviction was accepted and psychological quashed. In Raghip the Court of Appeal held that the circumstances to be considered by a trial judge when hearing submissions under Section 76 2(b) of PACE as to the admissibility of a confession include the mental condition of the defendant at the time the confession was made and that the decision is to be taken on medical evidence rather than the trial judge's assessmentof the defendant in interview. The accused's mental state during the relevant interview is "one of the circumstances existing at the time" which Section 76 2(b) of PACE requires to be taken into account in deciding on the reliability of any confession that the accused might have made in consequence of done. anything said or The rule in Rv Turner (57) stated by Lawton L. J. has been an impediment to the reception of psychological and psychiatric evidence: "An expert's opinion is admissible to furnish the court with scientific information which is likely to be outside the knowledge experience and of a judge or jury. If on the facts form judge jury their own conclusions proven a or can help, then the opinion of an expert is unnecessary." without However, with regard to confessions the courts seem to be moving away from the by imposed Rv Turner. Yet caution is needed bere, as Mirfield points out straitjacket (58) " it is clear from Rv Heaton (59) that where the accused's ... dull/normal I. Q. is in the general range, even though the is it the that accused very suggestible, will expert will say be extremely difficult to persuade a court that either the judge or the jury will find the expert's evidence helpful for be it " to ruled admissible. enough

However, just becausea defendant'sI. Q. is not below an arbitrary cut off point as defined in Rv Masih (60), then Rv Raghip establishedthat psychological evidence defective R borderline is in if I. Q. be the the range. mental accused's will admissible for follows in Rv Raghilp Ward (61) the admissibility of the scope enlarging v in psychiatric or psychological evidence relation to the truthfulnessof a confession: " the expert evidence of a psychiatrist or psychologist ... be if it is to the effect that a may properly admitted defendant is suffering from a condition not properly described as mental illness,, but from a personality disorder disorder. be " to as properly severe mental so categorised as

104

Another caveat should be made here. Although the mental state of the defendant at the time when the confession was made is clearly an important factor in establishing a risk that any confession may be unreliable under Section 76 2(b) that mental condition bring by done if has been to the can only vitiate a confession something police said or that condition into play. Cases such as Rv Goldenberg and Rv Crampton make it in by in the that the police clear mere vulnerability suspect and complete propriety interviewing will not bring Section 76 2(b) into play. The "thing done" which will bring Section 76 2(b) into play in the context of psychological or psychiatric usually vulnerabilities of the suspect will be the failure to secure the attendance of an by Wrongful Everett Code C Rv 11.4: (62) appropriate adult as required e.g. see denial of legal advice as in Rv McGovern may also bring Section 76 2(b) into play. However, where Section 76 2(b) does come into play the criminal courts have shown an increased understanding of the importance of psychological and psychiatric dangers in judge in the the to to expertise allowing understanding of come a proper from confessions certain vulnerable suspects.

105

Footnotes to Chapter 3

The Creditworthiness

Confessions of

Wigmore on Evidence, Volume IIL p. 306. Chadbourn Revision 1970. For an accoLmt of Bentham's views on evidence see W. Twining, "'I"heories of Evidence: Bentham and Wigmore" 1985 at pp. 19-108. (2)

See Chapter 5 of this thesis.

(3)

D. Wolchover and A. Heaton Armstrong "Confession Evidence" 1996, p.65.

(4)

Criminal Law Revision Committee. 11th Report. 1972, p. 35 at paragraph 55.

(5)

A McConville, A. Sanders, R. Leng, "Ile Case for the Prosecution" 1991, Chapter 4 pp.56-79, see especially at p.76: "Whereas suspects are generally keen to proclaim their innocence and endeavour to furnish evidence in support by their these the police. For the of claim, attempts are routinely rebuffed interviewing officer the suspect is presumptively guilty and the purpose of the interview is to produce a confession. Lines of defence raised by the suspect be ignored irrelevant to are red-hen-ings or argued away. To show interest in the story which the suspect wishes to present is to demonstrate weakness of battle To in the the suspect. permit material which resolve of wills with build into into interview is is to the the weakness case and the contradicts guilt for " the prosecution. antithesis of constructing a case

(6)

J. Baldwin, "Police Interview Techniques: Establishing Truth or Proof?" (1993) Vol. 33. The British Journal of Criminology, p. 325 at pp.350-351: "Interrogations are conducted with an eye to the possibility of any subsequent trial. In that sense their importance is concemed as much with what might be happened in later in the the circumstances of what court as with claimed incident. " original

(7)

G. Gudjonsson "The Psychology of Interrogations, Confessions and Testimony" 1992, Chapters 6 and 7, pp. 101-163. The basic idea of the have is interrogative that certain people a suggestibility concept of psychological make-up conducive to the uncritical acceptance of suggestions defines interrogative Gudjonsson by to them the suggestibility police. made interaction, " the to people come to which, within a closed social extent as, ... during formal questioning, as the result of accept messages communicated is "The behavioural. 115 their response affected", at p. of subsequent which Psychology of Interrogations, Confessions and Testimony", 1992. Other pertinent psychological vulnerabilities to the emergence of a false from suggestibility are: confession apart (1) learning disabilities (2) compliance (3) confabulation (4) acquiescence (5) anxiety states (6) major mental illnesses such as schizophrenia and severe depression (7) drug and alcohol intoxication and withdrawal states.

(8)

Barry Irving, quoted in Ronan Bennett "Double Jeopardy: The Retrial of the Guildford Four" 1993, at p.45. 106

(9)

Alastair Logan on Annstrong quoted in Ronan Bennett, "Double Jeopardy: Ile Retrial of the Guildford Four" 1993 at p.45.

(10)

G. Gudjonsson, J. MacKeith, "A Proven case of False Confession: Psychological Aspects of the Coerced-Compliant Type", (1990) Vol. 30 Journal of Science, Medicine and the Law, p. 329.

1)

ibid at P.334.

(12)

G. Gudjonsson, "The Psychology of Interrogations, Confessions and Testimony" 1992, at p.226 and also see pp.226-227 for an account of the various reasons why an individual might make such a confession. Gudjonsson comments, "It is now known how often voluntary false confessions occur or how easily they are recognized by police officers".

(13)

Rv Lambe (1791) 2 Leach C.C.552 (per Grose J.)

(14)

See on the Lindbergh baby case S. A Kassin and L. S. Wrightsman "Confession Evidence" in "The Psychology of Evidence and Trial Procedure" by A S. Kassin and L. S. Wrightsman 1985, p.67 at p.76. edited

(15)

Professor Keith Simpson "Forty Years of Murder: An Autobiography" 1980, at p.208.

(16)

G. Gudjonsson, "The Psychology of Interrogations, Confessions and Testimony" 1992 at p.227. For further case studies of false confessions drawn from legal Dutch "Anchored Narratives: The the although system see Psychology of Criminal Evidence" 1993, by W. Wagenaar, P. J. Van Koppen H. Crombaag 99-110. and at pp.

(17)

G. Gudjonsson "The Psychology of Testimony" 1992 at p...227 and '259. -,-

Interrogations,

Confessions and

G. Guqjonsson "The Psychology Testimony" 1992 at pp.226-228.

Interrogations,

Confessions and

of

ibid at p.2'91-8. (20)

Rv McGovem (1991) 92 Cr. App. R. 228.

(21)

Criminal Law Revision Committee Eleventh Report 1972, at paragraph 65 at 43-44. pp.

(22)

Rv Brine [ 1992] Crim. L. R. 12'.gl..

(23)

Rv Mackenzie (1993) 96 Cr. App. R. 98.

(24)

Michael Mansfield Q.C. "Presumed Guilty" 1993 at p.94.

(25)

S. Kassin and L. Wrightsman "Confessions in the Courtroom" 1993 at p. 140. The authors comment at p. 3: "Mock jurors are more influenced by testimony by identification". than an eye-witness's about a confession

(26)

W. Twining "Rethinking Evidence: Exploratory Essays" 1990 at p.3.

(27)

C. Walker, "Forensic Evidence and Terrorist Cases" [ 1995] Cambridge Law Journal, P-69.

107

(28)

Dickson, quoted in David Griffiths "Confessions", Scottish Criminal Law and Practice Series 1994, p. 128.

(29)

Fenton Bresler, "Lord Goddard" 1977 at p. 202.

(30)

Kent Greenawalt, "Perspectives on the Right to Silence", p.235 at p.264 in "Crime, Criminology and Public Policy" edited by Roger Hood, 1974.

(31)

Rv Goldenberg (1989) 88 Cr. App. R. 285. Rv Crampton (1991) 92 Cr. App. R. 369.

(32)

D. Birch, "The PACE Hots Up, Confessions and Confusions under the 1984 Act" [ 1989] Criminal Law Review 95 at p. 113.

(33)

Rv Crampton (1991) 92 Cr. App. R. 369 at p. 374.

(34)

Report of a Medical Working Group, "Substance Misuse, Detainees in Police Custody: Guidelines for Clinical Management", Department of Health 1994, H. M. S.O. pp. 12-13.

(35)

Rv Rennie [1982] 1 All ER 385. In this case a possible motive for the from but his family inquiry to as confession was protect members of police Lord Lane commented, "Even if it were the fact that the appellant had decided to admit his guilt because he hoped that if he did so the police would cease their enquiries into the part played by his mother., it does not follow that the have been confession should excluded". If the police had expressly held out the promise that they would not investigate the suspect's mother if he confessed then the confession would likely to be law PACE. Section 76.2(b) the old common and also under of excluded under However, as Lord Lane commented, "In some cases the hope may be selffor dominant it is irrelevant if it If the motive even provides generated. so have been In the the such a case confession will not making confession. few done by in There by are authority ... a person obtained anything said or firmly fairly being but in questioned a police station to prisoners who are be bring both does it their that they to might able not occur whom interrogation and their detention to an earlier end by confession".

(36)

G. Gudjonsson, 1. Bownes, "The Reasons why suspects confess during from data Vol. Medicine, Northern Ireland", 32, interrogation: 1992, custodial Science and the Law, p.204. See also: "Police Interviewing and Psychological Vulnerabilities: Predicting the Likelihood of a Confession", Gudjonsson, Pearce, Clare and Rutter. Journal of Community and Applied Social Psychology, Vol. 8 pp. 1-21,1998: "The paper is concerned with examining the differences between people who interview. during Suspects deny those were a police offences who confess and having illicit if (nonlikely to they consumed an reported confess more less likely hour drug in 24 to confess when the period and previous prescribed) interviewed in the presence of a legal advisor or if they had experience of In this study younger suspects were also more remand. custodial or prison likely to confess. Further examination reveals that nearly 60% of those that 50% 25 the than with of more under compared years or aged were confessed deniers who were aged over 25 years. Tbe results suggest that the odds of a if than times three greater the suspect suspect making a confession are more has reported using an illicit drug within the 24 hour period prior to arrest had he not taken such a or she compared with a suspect who claimed According the to this model odds of a suspect not making a substance. has for legal four times a adviser present a suspect who greater confession are does have legal in interview. the a adviser not compared with a suspect who

108

'Ibe model also predicts that a suspectwith experienceof prison or custodial remand has twice the odds of not making a confession compared with the has suspectwho no such experience. 'Ibe model suggeststhat what needs to be considered is experience of custody on remand or following conviction rather than convictions per se. It may be that the application of "custodial experience"to other studieswould resolve the conflicting reports of the effects of conviction on confession. In the majority of cases,personalexperienceof a incarceration period of will serve to reinforce the long term consequencesof making a confessionespeciallyin seriouscases". (37)

Rv Heron, 22nd November 1993, The Times.

(38)

G. Gudjonsson. "I'll help you boys as much as I can: how eagerness to please can result in a false confession" (1993) The Journal of Forensic Psychiatry, Vol. 6, No.. 2. p. 333.

(39)

Rv Mackenzie (1993) 96 Cr. App. R. p. 98 at p. 108.

(40)

Rv McGovem (1991) 92 Cr. App. R. p.228 at p.233. ibid.

(42)

D. Birch "The PACE Hots Up... " [ 1989] Criminal Law Review, p.95 at p. 111.

(43)

ibid, at p. I 11.

(44)

A. A. S. Zuckerman "The Principles of Criminal Evidence" 1989 at p.p. 336337.

(45)

C. Tapper, "Trends and Techniques in the Law of Evidence", in "Criminal Justice and Human Rights" edited by Peter Birks, Oxford 1995, p. 13 at p. 33.

(46)

RvKemy[1994]Crim. L. R. 284. Rv Cox [ 1991] Crim. L. R. 276.

(47)

Yale Kamisar, "What is an Involuntary Confession", (1963) Vol. 17, Rutgers Law Review, p.728 at p. 755.

(48)

P. Mirfield, "Ibe Future of the Law of Confessions" [ 1984] Criminal Law Review, pp. 70-71.

(49)

D. Oaks, "Studying the exclusionary rule in search and seizure" (1970) 37, The University of Chicago Law Review, 665. The reference for Mapp v Ohio is 367 US 643 (1961).

(50)

P. Lawrie, "Scotland Yard: A Study of the Metropolitan Police" 1970, p.219.

(51)

A. Stein, "The Law of Evidence and the Problem of Risk-Distribution", Ph.D. University of London 1990.

(52)

G. Gudjonsson and L. Haward "Forensic Psychology: A Guide to Practice" 1998at p. 176.

(53)

J. Sigurdsson and G. Gudjonsson "The Psychological Characteristics of 'False A Study among Icelandic Prison Inmates and Juvenile Confessors': Offenders" (1996) Vol. 20 Personality and Individual Differences, p. 321 at 321. p. 109

(54)

I'he Times, Friday March 20th 1998.

(55)

G. Gudjonsson and L. Haward "Forensic Psychology: A Guide to Practice" 1998 at p. 170.

(56)

Rv Silcott and others (1991), The Independent, 6 December 1992.

(57)

Rv Tumer [1975] Q.B. 834 at 841 C.A.

(58)

P. Mirfield "Silence, Confessions and Improperly Obtained Evidence" 1997 at 302. p.

(59)

Rv Heaton [1993] Crim. L. R. 593.

(60)

Rv Masih [1986] Crim. L. R. 395. The accused had a borderline I. Q. of 72 and was therefore a borderline mental defective. Had his I. Q. score been four lower he have defective been points would and expert classed as mentally have been evidence would admissible.

(61)

Rv Ward [1993] 1 WLR 619at690.

(62)

Rv Everett [1988] Crim. LR. 826.

110

CHAPTER 4 THE AUTHENTICITY

OF CONFESSIONS

Introduction This chapter will look at the authenticity of confessions issue. There will be a brief followed issue involves, by a history of the issue up to PACE. the outline of what Then there will be a discussion of the PACE recording regime itself and the response discussion breach be followed by This the to that of a of courts police of scheme. will how the authenticity issue has impacted on the prosecution duty to prove beyond by doubt has been in that reasonable a confession not obtained a way proscribed Section 76 2(b) of PACE. Then there will be a discussion of the consequencesof the tape recording requirement. This will lead on to a discussion of the lacunae in the interactions between the current regime, namely off suspect and the police and record informal confessions. It is ironical that for so long the law of criminal evidence attended to the in (although the the the voluntariness rule creditworthiness of confessions shape of far from being a complete test on the creditworthiness voluntariness rule was but did focusing it merely on certain methods of obtaining confessions) question, as largely ignored the question of the authenticity of the confession as raising an fundamental follows, is is irony issue. The the of most as authenticity admissibility fundamental is because It issues the evidence. questions of surrounding confession all do become legitimacy the the creditworthiness or not pertinent unless of confessions it is assumed that the confession was in fact made. As David Griffiths has put it in a Scotland in (1) law the of confessions study of "Unless the issue of 'verballing', actual or perceived, is little in is there tackled point worrying about probably issues such as fairness or corroboration. "

English law has approached this problem in the past by the judge assw-ning that the detennining the the then confession's of question and made was confession determine issue for jury It issue the the to of was of admissibility. voluntariness as an fact fact like issue fact the in any other the of not, made or an was confession whether issue determine. Only the the jury was entrusted to of extreme margin would at become the the of admissibility of a question the was made confession whether ill

confession as Mirfield makes clear by reference to the unusual case of Rv Roberts (1953) (2) where because the defendant was shown to be mute he could not have made his alleged oral confession. The orthodox view is, as Mirfield points out, that the do more than adduce pfima prosecution need not ... facie evidence of the making of the confession... " (3)

for it to be admitted to trial on that issue. Lord Bridge in the Privy Council case of Ajodha v The State (1982) (4) referred to the situation where the defence is an absolute denial of the prosecution evidence of a confession,

"In this situation no issueas to voluntarinesscan arise hence and no question of admissibility falls for the judge's decision. The issueof fact whether or not the statement was madeby the accusedis purely for the jury. "

The aim here will be for defence counsel to convince the jury or justices that the prosecution witnesses, usually the police, have made up the story of the confession.

The History of the Authenticitv

Issue up to PACE

It must not be assumed from the above that the issue of the authenticity of confession has been evidence not a serious source of concem to commentators and jurists at different periods of English legal history. Reference has been made earlier to the denials by in "verballing" the the 1970s, politically charged accusations and police of determination informed debate RCCP's to provide a system of the a which much of documentation of the suspect's period in police custody. Yet concern with the issue of found history be than the earlier periods of at much authenticity of confessions can 1970s. There was concern over this issue at the very time that the exclusionary rule late Wigmore in fonnulated in being the century. eighteenth and promulgated was "Wigmore on Evidence" sets himself to explain why jurists have exhibited such He differing the resolves the opinions on evidential value of confessions. widely between issue distinction by to the the of the authenticity of a pointing puzzle This issue in itself. the the explains why, of confession as evidence confession and

112

"On the one hand we find writers and judges of wide experience affmning the slender value of confessions in the greatest caution their use ... on the and urging find hand, other we persons of equal authority offering, in equally positive and unqualified language, that highest kind " (5) the confessions are of evidence.

As Wigmore points out, this conflict over the value of confessional evidence even manifested itself in the opinions of the same jurist, for example Sir William Scott in Williams v Williams (1798) said, "T'he court must remember that confession is a species of evidence which though not inadmissible, is regarded with distrust. " great

Sir William said in contrast, in the case of Mortimer v Mortimer (1820 I need not observe that confession generally ranks high, or I should say highest, in the scale of evidence."

According to Wigmore the writers who doubted the evidential value of confessions ff were thinking not of the confession as evidence of ... the act, but of the testimony to the alleged confession." (6)

As Erle J. stated in Rv Baldry (1852), "I am of opinion that when a confession is well proved it is the best evidence that can be produced."

This concern with the authenticity of confession was linked to the kind of witness late in to the testify to a confession eighteenth and early nineteenth relied upon Wigmore pointed out, these witnesses to alleged confessions often were, centuries, as

"Paid informers, treacherous associates,angry victims and over-zealous officers of the law - these are the persons through whom an alleged confession is oftenest presented." (7)

113

Wigmore himself must have been sufficiently impressed by the problem of the free bar lack the the authenticity of on of authenticity a confession to make admissibility of confession evidence. "The policy then should be to receive all well-proved jury, in leave to the to them confessions evidence and discrediting to subject all circumstances, to receive such weight as may seem proper. " The Scottish jurist Dickson was also alert to the great dangers of inauthentic he confessions when wrote in 1887 that, "Evidence of oral admissions is also easily fabricated, and the chance of detecting its untruth is small; for when his is independent to all a witness speaks an statement falsehood is almost beyond the reach of cross-examination is and seldom contradictory to the proved circumstances attending the crime. " (8)

For the modem context the point can also be made that when it is a policeman who his is the the to problem of assessing evidence attests making of an alleged confession legitimacy his him the particularly acute since mantle of office gives makes the for difficult jury his the to assesscorrectly. testimony the of confession reliability of Police testimony is normally assumed to be truthful in a liberal democratic state, duties the their that the will officers of state perfoml given general assumption dangerous honestly. This is what makes police perjury particularly competently and his detect. Mr. Justice Morand in Report difficult In Canadian to the context, on and Metropolitan Toronto Police Practices, has remarked on the phenomenon of general trust in the reliability of police testimony and the reasons for that trust, "To a very large extent in criminal cases the proof of ... the facts depends upon evidence given by the police. There is a natural tendency among judges as among the public generally, to accept the sworn testimony of a it police officer particularly when contradicts the words by is suspect the very of a person whose credibility law. " his (9) involvement the with reason of However, it is not clear that a concern with the authenticity of confessions actually influenced the development and application of the exclusionary "voluntariness" rule in the late eighteenth and early nineteenth centuries, although Wigmore ambiguously remarks,

114

"Tbe moral is that the proper course lies, not in distorting the legitimate principles of confession law but in exacting more in the way of quantity and by the testimony quality of which alleged confessions are presented." (10)

However, a plausible case can be made out for arguing that in the latter part of the nineteenth century a confession was excluded in a reported case partly because of a distrust of police evidence of the alleged confession of the accused. In Ibrahim v R. Lord Sumner entered into a discussion of the conflicting authorities on the admissibility of confessions obtained by questioning of suspects in police custody. Lord Sumner remarked, "Cave J. in Rv Male (1893) rejected a statement made by a prisoner in custody to a constable who had crossexamined him, saying merely that the police have no right to manufacture evidence ..." (11)

This interpretation of Rv Male suggests that distrust of police evidence of the confession may have played a part in the decision. In Rv Male Cave J. excluded a by the confession obtained questioning a person in custody on the ground of tý impermissibility of this course of conduct per se, for as Cave J. said of the policeman has in who a prisoner custody, "Under these circumstances, a policeman should keep his his " mouth shut and ears open. (12)

This reflected a general judicial and official dislike of the practice of police be It it in time. the their that those must remembered was custody at questioning of his defendant 1898 to that give evidence on was made competent own a not until behalf. Therefore,,some nineteenth century judges may have taken the view that since no questioning of the accused was allowed at trial then this prohibition should extend to pre trial police questioning of a suspect in custody. Certainly the remarks of Cave J. in Rv Male imply this connection between the prohibition on cross examination of ' before disallowing the trial suspect the accused at trial and any cross examination of by the police. Cave J. commented, "The law does not allow the judge or the jury to put be it in to questions open court prisoners; and would if law the permitted a police officer to go monstrous 115

being without anyone present to seehow the matter was conducted and put a prisoner through an examination and then produce the effects of that examination against him. "

However, it is possible that Lord Sunmer was right and that a fear of police manufactured evidence of a confession might have played a part in Cave J.'s approach. This analysis is supported by the remarks of Cave J. in the 1893 case of R Thompson (13). Cave J. said obiter v "I would add that for my part I always suspect these confessions, which are supposed to be the offspring of penitence and remorse, and which nevertheless by the prisoner at the trial. It is are repudiated remarkable that it is of very rare occurrence for evidence of a confession to be given when the proof is the of prisoner's guilt otherwise clear and satisfactory; but when it is not clear and satisfactory the prisoner is not infrequently alleged to have been seized with the desire born of penitence and remorse to supplement it desire with a confession, a which vanishes as soon as he appearsin a court of justice. "

That case was actually decided on the basis that it was not proved satisfactorily that the confession was voluntary but this remark of Cave J. is some evidence of a judicial unease with police evidence of the making of confessions, the same uneasewhich was to reappear nearly a hundred years later in the post PACE casesRv Keenan (1989), R There is Canale (1991) and similar cases. not much evidence of judicial distrust of v between in the the the end of the making of a confession period police evidence of judicial the modem nineteenth century and scepticism about police evidence of in PACE the post cases quoted above. confessions

One reason for this is that

questions as to the authenticity of a confession were treated as questions going to the before jury. The the the authenticity of a confession was alleged confession weight of be judicial issue to at all. a not considered is however, a decision of the Court of Appeal quashing a conviction in December 1973 which manifests a distrust of the police evidence of the making of a by judgement Lawton L. The The J. Rv Pattinson. (14) was given confession, There

for The the robbery. case prosecution substantially rested with charged was accused by P. him Two police officers who were supervising on an alleged oral confession disjointed he gave statement containing admissions evidence of a was shaving whilst but They had lasting the twenty time minutes. note at made no made a note about and

116

purporting to record the statement about one and a half hours later. As Lawton L. J.

commented, "It was a remarkable feat of memory on the part of these two police officers to have got down that disjointed statement." (15)

Moreover there was very little other evidence against the accused. "In these very unusual circumstances luck seemsto have been on the side of the prosecution becausethey were suddenly presented with evidence, which if true and reliable, accounted to a confession of guilt. " (16)

Lawton L. J. then commented, "T'his is not the first time in the history of the administration justice in this country that police officers have arrested of before he then a man and shortly was due to appear in court he has of his own volition supplied the evidence which was singularly lacking against him until that moment."

The judgement then quotes the remarks of Cave J. in Rv Thompson about the fabricating possibility of police an oral confession in order to provide the prosecution having to the with some evidence prosecute case, referred to the comment of Cave J., Lawton L. J. in Rv Pattinson, remarks "that is tl-iis case". The conviction is quashed L. J. Lawton remarking with " this court is gravely concerned about the state of the ... do like kind in this this not of evidence." case ... we evidence

Rv Pattinson is significant in cautioning against any glib assertions that post war and deliberate judiciary PACE the the would not countenance possibility of senior pre Pattinson Rv Court Appeal shows of evidence and perjury. a of manufacture police Lawton L. J. it PACE to the possibility manufactured police evidence. alert of will pre be remembered, was a member of the CLRC who in 1972 recommended the taping of interrogations as an experimental measure to combat police manufacturing of police confession evidence.

1 17

There are also the significant remarks of Lawton L. J. in the 1975 case of Rv Turner (17) where reference is made in the judgement to the practice of defence counsel challenging the credibility of the police witnesses giving evidence about oral confessions. Lawton L. J. comments that this. ) it

happens in this class of case at the almost always ... Central Criminal Court but not so commonly on circuit. "

Lawton L. J. then comments that this evidence by the police of alleged oral admissions is "usually" true but it if the evidence of such oral admissions is untrue ", it as regrettably sometimes is, defendants are unjustly and unfairly put at risk. In our judgement something be done should and as quickly as possible to make difficult evidence about oral statements either to challenge or to concoct." Tbis comment clearly has a resonance in the light of Hodgson J.'s comments in Rv Keenan that the recording provisions of PACE are there to protect the suspect from having oral confessions falsely attributed to him and also protects the police from unjustified allegations of manufacturing confession evidence and that therefore the PACE recording provisions of need to be supported by the likely exclusion of a have the confession where police significantly breached the recording provisions. The above analysis does not suggest that unease about the authenticity of extra judicial confessions actually influenced the "voluntariness" exclusionary rule or in itself, generated a policy of exclusion rather it is argued that this uneasemay have fom-ling in judicial late decisions in that the strand part of played a nineteenth century by from to tended the the questioning of exclude obtained which confessions police from judicial known This is Lord Sumner's in strand persons custody. was, as judgement in Ibrahim, opposed by another line of decisions which admitted by in Lord Sumner their those police questioning of custody - as confessions obtained said, "The English Law is still unsettled, strange as it may seem, is in that the since point one constantly occurs criminal trials. Many judges, in their discretion, exclude such for fear less they than the exclusion that nothing evidence., of all such statements can prevent improper questioning by inducement it. (18) to the to removing of prisoners resort

118

It may also be that a fear of police manufacturing of confession evidence bolstered this prejudice against the admissibihty of confessions obtained by police questioning of those in their custody. However, the orthodox view, as stated by Lord Bridge in Aiodha v State (1982) was that the question of the authenticity of a confession went to the weight of the evidence jury. The jury was assumedto be competent to assessaccurately the weight the with to be given to the confession in the light of doubts about its authenticity. A contrast be can made with the problem of assessing a confession which may have been obtained by a threat or inducement. In this situation the jury were not trusted to carry out the "weighting" exercise correctly. (1972) pointed out,

As the Criminal Law Revision Comn-tittee

"... that although in most casesthe jury would be able to assessthe weight to be given to an induced confession, there is still the danger that, in a case where the strength of the is balanced, immediate the evidence on either side about evenlv be jury the too effect on of evidence of a corifession, might be help by the to the great undone, even with of summing up, the evidence of the way in which the confession was obtained."(19)

For much of the twentieth century the weighting process for the jury of the issue of the authenticity of the confession was fairly unproblematic. The police were fabricate if to trusted evidence and a police witness testified that an not generally if had that then stron2 was not conclusive evidence that a made a confession accused for issue being had been the the question of the the made, main jury confession in Whether jury trust the police evidence was confession. creditworthiness of for jury Some is this view of corroboration sometimes misplaced a separatequestion. by Denning in debates is Lord in in the the trust veracity of police witnesses provided 1984 in the House of Lords on the PACE Bill. Lord Denning commented in the debate, "When I was a young man and I cross-examined a policeman lose The I he that my case. was wrong would and suggested jury had confidence in the police as we all had, and trusted them. How different it is now! Counsel taunt the police all the time; framing they they suggest up the case against them. are They appeal to the jury making allegations, particularly destroying the time, the confidence the police, all against " in (20) the police. of our people

119

Whether or not Lord Denning's comments are exaggerated about the contrast between the days of his youth and the present day, his Lordship does attest to a considerable change in public attitudes to the integrity of the police and hence jury approaches to police evidence. Further evidence of this shift, although again of an anecdotal nature, is to be found in the remarks of the experienced commentator and practitioner James Morton. Morton comments, "It should be remembered that until the 1970s evidence given by the police to magistrates and juries was almost invariably fabrication 'Me the accepted without question. concept of by investigating of evidence officers was simply not accepted by the courts." (2 1)

TI-iis is perhaps something of an exaggeration, for in 1963 Glanville Williams in "The Proof of Guilt" commented, "Whereas magistrates tend to believe the police officers who appear before them regularly and who are generally found to speak the truth and perhaps never caught out in a lie, though regularly alleged to be lying by defendants who is jury influenced are pleading guilty, a readily against the police and is slow to convict on police evidence alone." (22)

Moreover, Morton's claim that pre 1970's "the concept of the fabrication of evidence by investigating officers was simply not accepted by the courts" has to be set against both the the 1929 and 1962 practice of police verballing in official recognition of Royal Commissions on the police. 369, paragraph

The 1962 Royal Conunission commented at

"There was a body of evidence, too substantial to disregard, which in effect accused the police of stooping to the use of undesirable means of obtaining statementsand of occasionally law The National in a court of giving perjured evidence ... Council for Civil Liberties gave a few examples of casesin because had to the refused convict, apparently which courts based because disbelieved it the police evidence was was or held been have " (23) to voluntary. not on confessions which were

The 1962 Commission concluded,

120

"Practices of this kind., if they exist (and evidence about be difficult is to obtain and substantiate) must them " (24) unhesitatingly condemned.

lbe CLRC in 1972 referred to paragraph 369 of the 1962 Report quoted above and commented,, "... there is a widespread impression not only among criminals that in tough areas a police officer who is certain that he has got the right man will invent some oral admission to clinch the case." (25)

However, despite the occasional siren voices of concern, the general view pre the 1970s was that the vast majority of police officers did not give perjured evidence.

Sir Frederick Lawton (26) has written on the subject of fabrication of evidence by the police pre 1960s: "In a letter to the Times 24 March 1991, Montague Martin, before had the metropolitan a retired solicitor who practiced be to stipendiary magistrates seemed suggesting that police brutality and the fabrication of evidence had been common in the London area and that the magistrates there had been indifferent to it. When I practiced before those magistrates barrister instructed between 19611 1935 as a and was often that the police had "put on the verbals" and even that my been My had experience was client assaulted after arrest. Mr. Martin the that usually same as of - rejection of my " client's evidence.

Ibese comments from an extremely experienced former senior judge are most revealing. Sir Frederick Lawton has also written in a letter to the Times that,

it when I started in practice in 1935 police evidence ... ... then and for some years afterwards, was seldom challenged it juries it. " (27) was usually accepted and when

121

The consequenceof this was that questions about the authenticity of confessions could, it was assumed,be satisfactorily treated as a matter going to the weight of an alleged confession and not its admissibility. The jury could assessthe weight of the alleged confessionevidencein the light of the general belief that police officers were to be believed. Juries were similarly trusted to assessthe weight of the testimony of other witnesses such as accomplices, co-defendants etc., subject to the help of the judge in terms of corroboration warnings and judicial cautions. However, when the veracity of police evidence of alleged confessionsbecame a politically chargedissuethen the "weighting" processbecamemuch more problematic for it could no longer be assumedthat police witnesseswere telling the truth. From the early 1970s onward the issue of police fabrication of evidence, specifically confessions,entered public consciousnessas part of the general problem of police corruption at that time. As the research evidence to the RCCP (198 1) made clear, many criminal trials in the 1970s became centred upon the "authenticity of the confession" issue with for image the time, the court of the pohce and unfortunate consequences use of public the potential for the wrongful conviction of the innocent on 'verballed' confessions. There was also some scope for the guilty to escape conviction by persuading a jury that they were 'verballed'by the police when in fact they had made a confession: "The frequency of challenges to the police record of interview is said to make it essential to have some sort of independently validated record in order in the eyes of some to prevent the police from fabricating confessions or damaging have in to those the who eyes of others, prevent statements or in fact made admission subsequently retracting them." As the RCCP noted, "Nearly all challenges to verbal statements were on their being 2% them challenged on their alleged of accuracy, only With written statements the position was voluntariness. for being fewer 10% than accuracy challenged reversed, " (28) 40% their alleged voluntariness. were attacked on whereas

introduction be that to the the in of Later this chapter referencewill revolution made have indictable interview for formal to offences made all concerning tape recording but in is in statedas succinctly the way which confession evidence challenged court, in Crown Zander Henderson (29) is, their state recent the as and situation as possible, 122

Court study for the 1993 Royal Commission.

of...when the interview was tape recorded,challengeswere " very rare.

The PACE caseson breach of the "verballinLy" Provisions of PACE

There is a residual problem with non-tape recorded confessions which do still tend to in kind is that attract chaUenges a number of cases where of evidence adduced, but fair it is is that to say that tape taped the given confessional evidence now norm from has issue "authenticity the the the recording of confession", revolutionized of being a central issue in many trials to being an issue in only a small minority of cases. It was however., changing public perceptions of the veracity of police evidence in this 'verballing' Judges, in the this their enforcement of area which stimulated change. historical Codes Practice, this the provisions of of are very much aware of background to the new recording rules in PACE and the Codes of Practice and therefore take breach of these rules extremely seriously by often excluding under S.76 2(b) or S.78 confession evidence which has not been properly "authenticated" by a tape or contemporaneous note. In Rv Hunt (1992) Steyn L. J. (now Lord Steyn) Code C, to regard commented with

"T'he background to those provisions was of course a public legislative intention that the evil of police perception and a falsely incriminating statements to officers attributing be " in out. stamped persons custody should

The legislative intention has, as we shall see, been undermined by the continuing Leng, Roger informal the present a of critic as although confessions, of admissibility law, admits, "A consequence of PACE is that it would now be virtually impossible to fabricate a confession in formal interview have it " (30) admitted as evidence. and

This is because the judges have taken a very strict approach to breaches of the

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judicial intentions Codes. An in PACE recording provisions early signal of and the was sent to the police by HodgsonI in Rv Keenan in the spring of 1989. HodgsonJ. commented, " in caseswhere there has been "significant and ... breaches of the verballing provisions of the substantial" be frequently the code, evidenceso obtainedwill excluded..." (3 1)

in and emphasisof this important point Hodgson J. continued on the admissibility of admissions, " if the breachesare significant and substantialwe think ... it makes good senseto exclude them." The 'verballing' provisions now include the requirement to tape record any interview at a police station has been in respect of an with a person who cautioned ... ... indictable offence. " (Code E para 3.1 (a) Revised Edition 10/04/95)

There is also a requirement with regard to interviews at a police station or not, to make "... an accurate record of each interview with a person in (a) Code C (11.5 suspected of an offence" and 11.10.)

"Unless it is impracticable the personinterviewed shall be interview the to the opportunity read record and to given it indicate in he to the sign as correct or respects which it inaccurate. " considers

With regard to unsolicited commentsby the suspect, "A written record shall also be made of any commentsmade by a suspectedperson,including unsolicited commentswhich be but interview the context of an which might are outside Where the the to person shall offence practicable relevant ... be given the opportunity to read that record and to sign it as indicate he it in to the respects which considers correct or incorrect." (para.11.13)

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'Me change in attitude to these provisions by the judiciary in contrast to their attitude to the old requirement in the Judges' Rules to make a contemporaneous record of the interview, predates, as Professor Dennis points out, the revelations of the recent miscarriage of justice cases. (32) The leading case of Rv Keenan, in this area, was decided in the spring of 1989 whereas the Guildford Four were not released until October 1989. Ibe Guildford Four was the first case in the series of revelations of between Criminal Justice System justice; 1989 and the rniscarriages of which marked 1992. However, those revelations must have strengthened the trend towards exclusion in later cases on the authenticity issue such as Rv Scott (33) (August 1990) C.A. which was decided in the middle of the miscarriage of justice revelations of the 1989-1992 Dennis Professor in judicial is the the period. claims origins of change attitudes "obscure" (33b), but at least with regard to the verballing provisions of PACE the for fairly judicial is The is explanation changed attitudes straightforward. explanation the fraught background of the RCCP Report in 1981 on the question of 'police by informed 'authentication' PACE in Codes the the scheme set up verbal-ling' which later. directly In Rv Keenan Hodgson J. invoked history Practice the of some years justify his issue decision the to to exclude the confession verbaffing of concern with in "authenticated" that case. which was not properly "These Code provisions are designed to make it difficult for a detained person to make unfounded allegations against the police which might otherwise appear credible. Second, it inaccurately the police recording provides safeguards against detained inventing in the words used questioning a person or the provisions are designed to make it very much more difficult for a defendant to make unfounded allegations that he has been "verballed" which appear credible." (34)

More directly, Hodgson J. commented later in the case, "In caseswhen the rest of the evidence is weak or non existent, that is just the situation where the temptation to do what the is to provisions are aimed prevent greatest, and the protection " (35) the needed. most rules of

This comment has a strong echo of the remarks of Lawton L. J. in Rv Pattinson Rv 17hompson in (1893), on the temptations and pressures on J. Cave (1972) and fabricate in to cases confessions. certain officers police 125

Hodgson J. makes it clear that it is not satisfactory for a trial judge to reason that a defendant can contest the police version of events by going into the witness box at trial and that therefore it is not necessaryto exclude the alleged confessionwhich had been obtained in breach of the "verballing" provisions.

If the recording provisions are not complied with and the defendant is forced to contest the authenticity issue at trial then he is placed in the pre PACE era when a defendant, especially one with a criminal record, was at a serious disadvantagein successfully contesting the police version of events. This was becausea successful denial of the confession could be mounted only if the accusedwent into the witness box, thereby forfeiting his right to silence in court. Judges deprecateattempts to discredit police witnesses'version of events by defence counsel when the accused doesnot go into the witness box - see Rv Callaghan (1979) (36) and in any casethe jury will be suspicious of such a course of conduct by the defenceand are likely to disbelieve the defence if the accused does not testify himself. Section 35 of the Criminal Justice and Public Order Act 1994 formalises and legitimates the adverse inference drawing processof the jury in this type of situation. If the accused had a criminal record then the consequences of resolving the by issue dramatic S. 1f(ii) trial authenticity at were and are much more virtue of of the Criminal Evidence Act 1898 and by virtue of the interpretation given to that by Rv Britzman (1983) (37). If an accused with a criminal record suggests section ' is highly likely it his the that the then that police made up on oath confession previous be fact by ýMe jury inhibit to the will read out prosecution counsel. may convictions the defendant from contesting the confession himself in the witness box. It was decided in Rv Britzman that if the accused denied having confessed to the police, the implication necessarily being that the police officers lied on oath, the prosecution may Indeed in thereupon cross-examine the accused on his previous convictions. Britzman the appellant and his counsel were very careful in what they said - they had did denied the they that the taken with police, not go place conversation merely fabricated had the evidence against them. that the to police offices allege on Nevertheless as Lawton L. J. held, "A defence to a criminal charge which suggests that false have deliberately made up prosecution witnesses in involve to evidence order secure a conviction must imputations on the characters of those witnesses."

dramatic that the consequence with 126

"... juries are entitled to know about the charactersof those imputations). " (38) (the making

Lawton L. J. did refer to a discretion to disallow such cross-examinationeven when imputations on prosecution witnesseshave been made but such discretion was only to be exercised if there is nothing more than a denial of what was said in a short interview but that the be different however, if there was a position would ... denial of evidenceof a long period or detailed observation extending over hours and ... where there were denials of long conversations."

'Me type of convictions which can be revealed to the jury can bear a strong

resemblanceto the offence with which the defendant is charged. The convictions be for dishonesty for be jury. them to to the need not offences revealed It may be thought that only dishonesty convictions were relevant to the issue of the However, in Rv Powell the credibility of accused as a witness. as was made clear the fact that the previous convictions are not for offences involving dishonesty does not preclude them from being revealed under S.1f(ii). If the offences how defendant faces is hard it jury to the the the then to see can are similar charge (1986) (39)

from issue to the themselves those using convictions of the guilt of the prevent feature law directly. This the of on cross examination must act as a powerful accused disincentive on the accused to challenge police evidence in the witness box. 1he Royal Commission in 1993 stated that whereas 83% of defendants with no previous % defendants 71 in Crown Court trials, with only of convictions gave evidence from its Crown (40) this gathered own evidence gave evidence: previous convictions Court study.

One dramatic and prejudicial result for the accusedof the police not complying with have be issue" "confession to the that the verballing provisions was would resolved at by denying by by the the testimony testimony of accused,who the trial of police and that the confessionwas madein opposition to the police claim that the confessionwas be his in issue "Britzman" the thereby under putting character made, would interpretation of S.1f(ii) of the Criminal Evidence Act 1898. If the police had danger the then the the of accused'scharacter provisions recording with complied being put in issue at the trial would not have arisen: the accusedonly puts his 127

if he issue in in his trial issue at chooses character previous convictions and therefore to do so by conducting his defencein a particular way, e.g. by attacking the veracity force him his to However, the of prosecution witnesses. conduct police would defence in a particular way if they failed to comply with the recording provisions of PACE. Hodgson J. outlined

in third way a which

the accused could be seriously

disadvantagedby police non-compliancewith the anti-verballing provisions: "If the defencewas to be that the interview was inaccurately recordedthen it was plainly unfair to admit it becauseit placed the appellant at a substantialdishe in had been that advantage given no contemporaneous opportunity to correct any inaccuraciesnor would he have his own contemporaneousnote of what he had said." Hodgson J. made it clear that criminal trials should not, as they tended to in the past, become "battles of character" between police witnesses and the accused over the The battle authenticity of an alleged confession. unfortunate consequencesof such a were made clear throughout Hodgson J.'s judgement in Keenan. These unfortunate consequences were: unfounded attacks on the integrity of police being forced his in issue, to the accused put or to give testimony witnesses, character he be when would prefer not to and also the ever present and cross-examined jury "verballed" the the that would wrongly convict accused on police possibility confession evidence.

All these problems can be averted by simply insisting that the police record all interviews in the police station at least for indictable offences and enforcing this breach in by serious of the recording excluding any confession obtained stricture requirements. Hodgson J.'s strictures in Keenan have been followed in later casessuch as Rv Walsh (1990) where Saville J. cornmented that if there had been significant and substantial breaches of the provisions of the Codes relating to the recording of interviews,

"T'henprima facie at least the standardsof fairnessset by Parliament have not been met." (4 1)

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The judiciary are no longer prepared to rely upon the integrity of the police version of by happened demand but during interrogation the that what scheme which was set up PACE and the Codes of Practice to record interviews be respected by the police. That scheme represents a publicly agreed upon procedure to resolve the troublesome "authenticity" issue.

If juries becomeunduly suspiciousof police evidencebecauseof bad publicity about the integrity of police evidence then there is a real danger that they will disbelieve fact in that evidenceis reliable as proof of guilt. This is hardly police evidencewhen due to the conducive administration of the criminal law. To the extent that the public have grown sceptical about police evidence this representsa serious deterioration in the quality of the administration of justice for after all police officers are officers of the law. There is some encouraging evidence that it is not only formal interviews which are being vigorously policed by the judiciary. Informal interviews are also liable to breached. In Rv if the the attract are exclusionary approach recording provisions Weerdestevn (1994) (42) customs officers had failed to make a note of their informal for inevitably the accused the there questioning of suspect and so was no opportunity to have approved of the record of the interview or expressed his disagreement in incriminating Hobhouse L. J. Code. the the remarks, noting excluded accordance with did, he that as " the vice that arises from this disregard of the Code has ... been commented upon by this court on many occasions. The purpose is to obtain good and reliable evidence of fairness in has been to the appellant that said and anything to enable him to comment upon it and/or correct it close to time when the matter is fresh in his mind. What happened in the present case was that at the very earliest he did not know that he had said anything significant during this later. least two-and-a-half months conversation until at When it came to the trial all that he could say was that he had no recollection of the conversation at all; that is not by that the result which was produced was surprising, so this failure to observe the provisions of the Code."

Rv Weerdesteyn follows Rv Cox (1992) and the opinion of Bingham L. J. in Rv Absolam (43) that the Codes of Practice may apply even in a case in which it was formal in interview. For Code the to there any not sense a was conventional that plain by "there directed it that the the to was a series of police questions sufficed apply be founded". to obtaining admissions on which proceedings could suspect with a view

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Indeed in Rv Weerdesteyn there was only one question from the Customs officer The Court Appeal from incriminating the of which produced the suspect. replies "designed it held to produce that nevertheless that the situation was such was intended Code it to prevent. the was unguarded admissions" so that was one which Therefore the suspect should have been cautioned before the Customs officer asked the single question about the alleged offence and also that a proper record should have been made of the short exchange between suspect and Customs officer. In the 1995 version of Code C in 11.1.A it states, "'An interview is the questioning of a person involvement his involvement in regarding or suspected a criminal offence". In Ry Chung (1990) (44) the Court of Appeal said a confession should have been in S. 78, S. 76 2(b) for the the the alternative excluded under or grounds one of decision being the failure to record the alleged admissions immediately and the failure had been interview it the the to made when note of show to the appellant. To quote R. Leng, "Recent casesindicate that the courts will exclude informal alleged admissions where no adequateopporturýity, to veffy or deny has been given. " (45)

Given this acknowledgement there is an element of overreaction by Leng when he RCCJ in the report that, claims criticism of

it perhaps the most outstanding feature of their ... fails distinguish between is it to that recorded reasoning fails to therefore and unrecorded confessions and fabrication, the where the only real risk of address is " (46) police officer's word. evidence of a confession a

With regard to informal confessions,the Code states that a contemporaneousnote it likely is by be be that the a confession will suspect and made and signed must by law 76 2(b) 78 S. discretion S. if in the under or even under no court's excluded forthcoming have is been to the why provisions not as recording good explanation is It to the therefore misleading write of existence.of cases, somewhat with. complied does Leng as 11 where the only evidenceof a confessionis a police ... " (47) officer's word. 130

However, exclusion of a confession under S.78 is a discretionary matter and it is possible that some courts will admit confessions even where the recording provisions have been breached. Whether this situation is satisfactory will be examined later in this chapter.

The Authenticity

Confession of a and the Section 76 2(b) issue

The authenticity of the confession has not only become an exclusionary question m itself under the S.78 discretion, it also has become part of the exclusionary issue under the S.76 2(b) rule of law. It is important here to point out that a confession is more than just a single moment of contrition by a suspect, it is also often a product of a process, namely the interaction between police and the suspect. As was made clear in the extremely important research study, "The Case for the Prosecution" (1991) by McConville, Sanders and Leng, "Analysis of police interrogation records confirms that the is dynamic between interrogator relationship and suspect interis the that process of so any confession a product of " action. (48)

However, it is an 'unfair' dynamic given the great power imbalance between the police legitimate designed "confirm interrogation is to and a police and the suspect; how through the the obtaining of a confession wl-dch replicates narrative" of events involvement in involvement the crime. the suspect's or alleged police viewed Once this is realised it can be seen that any attempt to record the moment of least by to tend the some of that policerecord at suspect will also acceptance of guilt interaction. suspect

Ibus, the issue of whether the confession was made as a result of inducementsor by looking be at the record of the resolved sometimes threats of violence can interview process. A Criminal Justice System which places a high premium on the evidence clear of the wiH secure some of confessions also authenticity securing has it judiciary in the the made plain confessionwas made and circumstances which in 76 S. independent the to that record order satisfactorily adjudicate that they require 2(b) question of law.

'ne judiciary are thus not only not preparedto rely, as they

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used to, upon the word of the police as to the evidence of a confession but also the testimony of the police will not suffice on the crucial question of the surrounding circumstances of the confession, e.g. was an inducement made by the police There is however, an important point to be made about current practice concerning the use of tapes of interrogation in court. Baldwin (49) has shown through research that written tape summaries prepared by police officers preceding the confession?

are often used in court rather than the playing of the tape itself. The tapes are rarely checked by defence lawyers. If the police officers make an inaccurate written summary of the taped interrogation, and Baldwin suggests such summaries can be inaccurate, then the benefits of the regime of the tape recording requirement, i. e. to provide the court with an accurate and unassailable record of the interrogation may be diminished or lost. In, R v Delaney the lack of a contemporaneous record of the interrogation went to the admissibility question of S.76 2(b) of PACE. Lord Chief Justice Lane giving the judgement of the Court of Appeal held that while the particular breach, i. e. breach of the recording requirements, did not directly affect the confessions which the accused had following it the made effect, "By failing to make a contemporaneousnote, or indeed deprived the the any note as soon as practicable, officers court of what was, in all likelihood, the most cogent did induce to the appellant to confess." (50) evidence as what

In Delaney there was an issue that the police had deliberately sought to play down,

the seriousnessof the offence to the suspect who had an LQ. of 80 and who, had to the according evidence of a psychologist, a personality which if was such that when being interviewed as a suspect ... he would be subject to quick emotional arousal which lead himself interview by him to the to wish rid of might bringing it to an end as rapidly as possible. " The offence was in fact a serious one, that of indecent assault on a very young girl. The Detective Constable admitted at trial that he had defiberately sought to play down he frighten from did because Delaney to the not want the seriousness of assault The his the this towards of police particular conduct suspect was guilt confessing Lane, false Lord "be in the the encouraging a police might words of such that, have felt it from The (51) to the may appellant get was easier away confession". by interrogation in the making particularly of a confession, experience unpleasant

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light of the suggestion that what was required was treatment rather than prison. T'herefore.,as Lord Lane argued, the breach of the recording provisions

" deprived the court of the knowledge which should have ... been available to it, nmnely of precisely what was said by theseofficers in the vital interview."

Given this, the conviction was quashed as the confession should have been excluded under S.76 2(b) of PACE.

Under S.76 2(b) it is the prosecution which bears the burden of proof, proof beyond reasonable doubt, that the confession was not obtained by "anything said or done" which, "was likely in the circumstances existing at the time, to render unreliable any be by him in The thereof'. confession which might made consequence significance of the reasoning in Delaney is that the testimony of the police is not sufficient to discharge this burden and if the burden is not discharged, then, as a matter of law the been followed be S. 76 2(b). Rv has in Rv Delaney confession must excluded under Barry (1992) (52). In that case the Court of Appeal held that since "there was a clear between during the the to conflict of evidence appellant and police as what was said the unrecorded interviews" this was a factor which the trial judge should have given in S. 76 2(b). As the to to more weight considering whether exclude confession under the Court of Appeal reasoned, if those interviews had been recorded as the.v should ... have been, the court would have been in a much better " the to relevant assess evidence. position

In this respect there has been a dramatic change from the common law situation burden bore the the of showing that the confession was prosecution where "voluntary". 71hechangefrom the common law situation is as follows: Given that the Judges' Rules on contemporaneousnote taking and accessto legal judges by disregarded the the that police and were extremely advice were often for breaches in discretion Judges' their the of to reluctant exclude alleged confessions Rules, then the suspect was often at a structural disadvantagein claiming that his law 'Me judiciary had "involuntary". often no at common confession was independentrecord of the interrogation nor an independentwitness to attest to it in It issue. decide the the voluntariness was on often merely to authoritatively order 133

police account of what happened at interrogation against the suspect's account of alleged threats or inducements before he made a confession.

Given the high esteemin which police evidencewas held by judges in the pre PACE era then the suspectwould have a difficult task in arguing that there was a threat or inducementif the police were detem-iinedto deny that evidenceand commit perjury in the process. There is a strong parallel here with the question of the existence of a confession: defendant independent the the given would absence of an account of confession a have a difficult task in persuading a jury that he rather than the police should be Now, both the issue of the authenticity of the confession (which has become an exclusionary issue) and the question of its surrounding circumstances be defendant. by A that the trial testimony of cannot resolved simply police against at

believed.

for have it judges interrogations the the made recording of exists and statutory scheme for interrogation. is that the the that clear word of police not a substitute record of an P. Mirfield in his first monograph on "Confessions" attested to the advantages of an interrogation, accurate record of "An accurate record of transactions between police and in in accused might some circumstances assist the correct law issue by the trier which resolution of of any exclusion is his that arises ... an accusedmight allege confession inadmissible becauseobtained by threats of violence. " "In such a case it is very likely that the sole issue will be If the threats whether were actually made. so, the admissibility of the confession will turn entirely on be " (53) the reliance police record. whether can placed upon

In Rv Canale (1991) (54) the Lord Chief Justice again stressedthat if an allegation of judge is inducement the then threat the will need recording made, or an improper he him be in PACE to to can evidence on which give observed order requirements of had law. In 2(b) Canale 2(a) S. 76 S. 76 there the or questions of properly adjudicate been in the words of Lord Lane "flagrant and cynical" breaches of the requirements for the contemporaneous recording of interviews by the police. The accused had had in interviews been two which not recorded. allegedly confessed However, in two subsequent interviews which were recorded, he repeated his had been he induced by The the that trial certain appellant argued at admissions. 134

promises on behalf of the police to make the unrecordedadmissionswhich startedoff the whole seriesof admissions. Up to the first admissionat the interview which was not contemporaneouslyrecordedhe had, in the words of the Court of Appeal, 11...stoutly denied that he had anything to do with these " (55) conspiracies or robberies at all. As the Court of Appeal concluded, if somehow that volte-face, because volte-face it ... had be to was, explained. " (56) Yet when the trial judge came to rule on the question of inadmissibility under S.762(b) or S.78 of PACE the judge was "... deprived of the very evidence which would have him to come to a more certain conclusion as to enabled he do what should with regard to the submissions, because he was deprived of that contemporaneous note which have been " should made. Thus in decidi-ng whether the first admission was properly obtained or not (i. e. by the the police) the existence of the promises whether as result of certain S. 76 2(b) to the the note was vital answering contemporaneous of question. It was no answer for the police to point to the later admissions which were recorded, for their admissibility depended on the admissibility of the first unrecorded later defendant i. that the those recorded admissions would not argued admission, e. have happened without the making of the first unrecorded admission. The Court of Appeal in Rv Canale quashed the defendant's convictions holding that all the have been inadmissible Section 78. under ruled admissions should The reasoning in Canale seems to be along the following lines: if the police by their failure to comply with the verballing provisions deny the court the ability to decide 76 2(b) by depriving S. the court of an properly, the admissibility question under done 78, by S. to the the then suspect police, accurate record of what was said or be "fairness is the the to of proceedings" with might used rule concerned which inadmissible any disputed confession. On the issue of admissibility under S.76 2(b) induced the to the to the on word rely of police as not prepared what the courts are is in PACE Codes the provision statutory made and when of suspect to confess

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Practice for the creation of contemporaneousdocumentationof an interrogation which the suspectshould have had the opportunity to correct, at the time of the interrogation. This reasoningalso applies to the presentrequirementto make a tape recording of all interviews at police stations concerning indictable offences. To conclude, although S-76 2(b) is not directed at the question of whether a confession has been in fact made, the failure of the police to record an interview at which a confession is alleged to have been made can be a relevant factor under S.76 2(b). As Birch conunents,

11 while such a breach to record properly cannot by itself ... justify exclusion under S.76 2(b) it may be a relevant factor to take into account when the court is trying to decide whether something has been "said or done" prior to the confession is which conducive to untruth. Thus if D says be was offered bribe interviewing to to the the a confess offence, and officer lie, fact failed is has that this the that the to says a officer have interview helped the make a proper record of which might the court to decide whom to believe is obviously relevant to the S.76 2(b) question. Given that the burden of proof is on the failure it S. 76 2(b) be the that prosecution under may well case a to record an interview properly is fatal to a prosecution discharge burden hence to this attempt and any confession be from " the trial. will excluded

The Consequences of the Tape-recordini! Reciuirement

John Baldwin (57) has described the introduction of recorded interviews with suspects as 11 maybe the single most important reform of the criminal ... justice system in recent years."

It is not difficult to understand the reasons for this claim. A taped record of an interrogation with a suspect helps to resolve the problems posed by confession it levels: it the clear evidence of making of a confession; provides evidenceat many in the the circumstances which confession was made of evidence some provides, inducements in bearing the tape the (always or threats which possibility of off mind McConvil-le, The (58)). by disclosed this the tape on recording see existence are not for it interrogation judge the may not much only make easier a of a tape recording of inducements by but the threats determine made of violence or were police whether to 136

it also may help to prevent miscarriages of justice based on false confessions caused in another way. This is the situation where the confession of the accused purportedly know. details the the reveals actual offender could police and of the crime which only However, as The Confait case (59) reveals, such "special knowledge" may have been unwittingly communicated to the suspect during interrogation by the police. Sir Henry Fisher in his report (60) on the Confait case was misled by the apparent incriminating "knowledge" in the confessions of the boys to the murder of Maxwell Confait. This knowledge was in fact communicated to the boys by the police. A tape recording of the interrogation makes it easier to evaluate what is said during interrogation by the police and may disclose that a seemingly reliable confession discloses knowledge" "special be because the that which of crime may not reliable "knowledge" may have been unwittingly transmitted to the suspect during the interrogation, who then has merely incorporated that information into his false confession. Indeed, in Rv Mackenzie Lord Taylor suggested that the "special knowledge" Mackenzie displayed in his confession about the murders may have been by communicated unwittingly police to him by a non taped interview in the police car disclose information (61) A the to the tape on police station. way may whether about the offence may have been transmitted in this way from the police to the suspect. A tape recording of the interrogation may also confirm whether the suspect was before he his the cautioned questioning and whether was offered right to see a for be down due It that the suspect in setting clear process protections solicitor. may down failure be by to police interrogation may undern-fined also set a requirement a that the interrogation process be properly recorded. Procedural protections for be is independent there record of the suspects can more easily evaded when no interrogation. Tape recording also prevents valuable court time being taken up with allegations and denials of the practice of "verballing" or the use of violence at interrogation, although be before interrogation. the the made about period accusations can still Some measure of tape recordings' success in achieving fairness between police and hostility idea is the to the police welcome tape recording as that after years of suspects body law in The JUSTICE, them. reform a means of preventing unjustified attacks on its research of over 3,000 caseswhere convictions were challenged, found that, "Before PACE the main complaints had been physical or fabrication intimidation the and of admissions. verbal Those problems had virtually been removed in formal interviews by the requirement for tape recording. " (62)

137

The police themselvesview the tape recording requirementsof PACE positively, for as one of the Chief Constables interviewed by Reiner in his book on Chief Constables.,commented, "Tape recording has helped us work quite effectively produced straight pleas of guilty, cut out all the nonsense of allegations of verbals." (63) The tape recording of interrogations has also significantly aided the work of forensic psychiatrists such as Gudjonsson, who are able to make an informed judgement about the reliability of a confession and the vulnerabilities of suspects from listening to the tape. This aids the defence at the trial in contesting the confession if it is unreliable helps false has to and also secure successful appeals once conviction on a confession emerged. However, what clouds this picture of properly documented interrogations are two major problems which continue to trouble commentators.

Off the record interactions and informal confessions

Off the record interactions which affect the formal interview record and which include inducements Dixon his in threats unrecorded or or violence. could before found that officers routinely prepare suspects recorded study 71 % of police officers reported that they sometimes, often or did this. (64) always interviewing:

2.

'Infonnal' confessionswhich do not have to be tape recordedbut require only be it is impracticable "unless the person to made and a contemporaneous note interviewed shaU be given the opportunity to read the interview record and to in he indicate it inaccurate it the to respects which considers sign as correct or it, if the person concerned to the the record refuses read or sign senior ... ... it him him he like to to read whether would and ask shall present officer police interview it then the the police officer shall certify on record sign as correct ... itself what has occurred. " (11.10) Given this, the scope for abuse in terms of "verballing" is stiH a possibility for informal confessions even though that for fonnal been interviews. has eradicated particular problem

138

The first problem to consider is the continuing possibility of off the record inducements or threats which could influence the content of the fon-nal interview. This is seen as a particularly insidious threat, for as McConville, Sanders and Leng comment in relation to the official record of interrogation, " the integrity of the record is compromised by the ... fact that it ignores the police/suspect questioning that it. often precedes " (65)

They argue that custody officers who control access to the suspect are often by informal in investigating this the complicitous process allowing officers access to the suspect without that being recorded on the custody sheet. The possibility of off the record inducements and threats are described in the following way by McConvi1le, Bridges, Hodgson and Pavlovic, "The importance of these low visibility exchangesbetween be The more police and suspect cannot overestimated. successful in manipulating the decision making of the suspect, the less apparent will be the influence of the police when the level interrogation It is that this takes place. at covert official the police are able to utilize those strategies which if discovered, disapproval incur the of the courts and endanger would or might the admissibility of any confession arising therefrom. " (66) In the light of this, a cynic may offer an account of why the police have welcomed the tape recording of interrogations. A cynic may argue that tape recording offers the illusion of a complete record of interrogation whilst allowing the police to manipulate the suspect off the tape. As Roger Leng has commented, investigators, from the the of activities restricting far ... PACE rule about recording interviews serves the police interest in controlling the investigation. By legitimating the formal interview the rule elevates that part of the total interaction which the police have chosen to emphasize less is denying that convenient which whilst obscuring and light in Viewed this the to constabulary police case. becomes " (67) for quite understandable. recording enthusiasm

for important it is the that the recording procedures operate only as a shield Given this inducement for demonstrating the by that offered, recording an was example, accused for the tape the recording since a sword prosecution as operate not should procedures by inducement the threat that alleged suspect a or prove conclusively cannot or note 139

had never been made by the police. Unfortunately some judicial opinion has taken the evidence of a tape or a contemporaneous note as being the last word on whether Canale Lord Rv In by inducement the an police. or threat was offered to the suspect Lane made the following remark: "The importance of the rules relating to contemporaneous be interviews over emphasized ... can scarcely noting of it is a protection for the police, to ensure as far as possible that it cannot be suggestedthat they induced the suspect to confess by improper approaches or improper promises ..." (68)

It is respectfully submitted that Lord Lane could have been more cautious here, for if is is its that then that tape whilst one can accept a confession made on conclusive of less is the tape, that existence, one should not accept and much a written note, inducements to the threats conclusive of whether were made prior to question as or the confession. Lord Lane should have been aware that it is a potentially dangerous final is the the to the that to word on the message send police record presumptively S.76 2(b) question. Judges should be cautious about accepting at face value the discloses inducement threat that the the that no or claims of police since record therefore no threat or inducement was made. The approach advocated here would be consistent with modem judicial scepticism towards the police account of interrogations manifest in such casesas Keenan, Canale be The judiciary Delaney. The of a suspect's should equally sceptical claims. and judiciary should not be overly ready to accept the allegations of suspects that the have Suspects inducements "off threats. the tape" often or good reason police made to falsely allege police n-lisbehaviour. It should be remembered that the prosecution by doubt beyond have that to prove a confession was not obtained reasonable still "oppression" or "anything said or done" which threatens the reliability of a final be The the tape word on that regarded as or signed note should not confession. for be It to the therefore point to the tape and prosecution possible should not subject. have inducement does disclose it for then they not an example, argue that since S. 76 2(b) burden the the question. of proof on automatically satisfied

Informal

Confessions

Infonnal confessions remain a source of concern to commentators since their the the to regime against practice tends of protection of undercut admission 140

'verballing' established by PACE T'he existence of informal confessions allows police deviance, (in this case "verballing") to be "shifted" rather than eliminated. Whereas the possibility of 'verballing' in formal interviews has been eliminated by the for interrogations indictable 'verballing' tape compulsory offences, recording of aU remains a possibility with regard to informal confessions. This is because tape recording is not required, only a contemporaneous note is required which the suspect be should given the opportunity to sign, but since provision is made in the Code for the situation where the suspect refuses to sign (a note must be made of this) the possibility of the concoction of a confession in informal interviews by the police remains a possibility. In Rv Scott (1990) the Court of Appeal quashed a conviction based on an informal confession which had been obtained in breach of the Code. In that case the suspect had made incriminating remarks after a tape recorded interview

had fmished. The police officers made a note of the comment but failed to show it to the suspect or him it. defence had incriminating At trial the to that the ask sign was comment not been made - the old 'verballing' situation. 'Me Court of Appeal said the trial judge had erred in his discretion under S.78 of PACE in admitting the evidence because of "The fact that the incriminating remark came between two interviews denying the (69) offence". However, S.78 is a discretionary power to exclude evidence and it should not be has been breach Codes that time the then a confession will there a every of assumed be excluded. In Rv Scott emphasis was laid on the fact that the alleged incriminating denials between It two the taped of offence. still remains a possibility remark came that confession evidence will be admitted where the only evidence of such a light in Keenan is the testimony of although cases such as confession a police officer's , be 78 discretion. is is S. It "likely" Scott to the excluded under such evidence and in discretionary is here that this that a exclusionary approach unsatisfactory submitted does far in tackling the continuing to non authenticated confessions not go enough Moreover, in 'verballed' of a evidence confession. allowing the police problem of has been a contemporaneous note made and an admissibility of a confession where it, law for is At to the the to sign suspect allowing scope abuse. opportunity offered fabricate informal that the an alleged confession and say can officer police a present but the the to and correct note of confession refused sign a chance offered was suspect be It 11.10. C, Code the then do police officer's word would paragraph to see so: fact in in defendant that this the occurred. court chain of events against that of

141

Whereas informal interviews can probably never be eliminated given the 'low visibility' of exchangesbetweenpolice and suspect(e.g. at the sceneof the crime or in the police car on the way to the station) the products of informal interviews, i. e. informal confessionscan be eliminated from the criminal trial by the simple expedient of an exclusionary rule to the effect that no confession shall be admissible unless made on tapeand/or madein the presenceof an independentthird party. Such an approach has had the recent support of Lord Templeman. in A. T. and T. Istel his Tully 992) Lordship said, 0 v where "Ill treatment of prisoners and fabrication of confessions be by better only can prevented organisation, selection, training, supervision and remuneration of the police force legal for independent to coupled with stringent rules access bar in advice and a on confessions obtained the absenceof that representation. If fewer convictions result, this is a force be the price which must police paid and a price which as at present trained are unable to accept." (70)

The Royal Commission on Criminal Justice were also not prepared to "pay the price" bar in taped the presence of an of a confessions or confessions not made on non independent third party. The RCCJ feared that the consequencesof such a rule would be that too many guilty people would go free since for example "spontaneous for is There (71) truthful". this the most confessions on arrest are often some support in RCCJ the the about reliability of confessions made upon arrest the remarks view of in Turner, L. J. Rv Lawton of "It is a matter of hurnan experience which has long been be that to revealed wrongdoers who are about recognized, for what they are, often find relief from their inner tensions by talking about what they have done. In our judgement and for issions is this oral adm a common explanation experience later " (72) time the retracted. of arrest and made at or about

However, as Roger Leng points out the RCCJ has missed the main issue9which is not fact been but have in informal truthful they made, whether confessions are whether i. e. the 'authenticity' issue rather than the 'creditworthiness' issue. If the suspect does he is fact then in shortly after arrest unjustly and unfairly put at confess upon or not be in to the by given possibility of confession an alleged oral allows which rule a risk debate important dimension is There to the public on non an policy also evidence. had Dennis Professor written, taped confessions.

142

"Police evidence of oral admissions is highly damaging to the its hence but that experience shows accused and prejudicial " doubtful in is the probative value absenceof corroboration. (73) Recognition that police perjury and fabrication of confessions has played a major role in recent miscarriages of justice cases,and that these miscarriage of justice caseshave produced a public crisis of confidence in the criminal justice system, would justify not merely a corroboration requirement for informal confessions but a full exclusionary rule. The revelation of any miscarriage of justice is likely to have some effect on public confidence in the criminal justice system. This is so whether the miscarriage is due to unreliable identification evidence or the perjured testimony of an alleged victim for due However, is the the to police perjury the example. where cause of miscarriage damage to the criminal justice system is of a qualitatively different nature from other justice. damage done by The causes of miscarriage of police perjury is likely to be because integral justice the the great police are an part of criminal system. The investigation of offences by the police tends to be publicly viewed as part of the justice. Birkett blow As Lord "a observed many years ago, adniifflstration of struck at the integrity of the police is a blow struck at the whole fabric of the State". (74) Some convictions of the guilty would be lost by an exclusionary rule for non taped loss but in in the terms the crin-linal justice confidence confessions cost of of public kind (i. this e. wrongful conviction on system of particular of wrongful conviction 'verballed' confession evidence) is so great that an exclusionary rule is justified. The far here. does The RCCJ RCCJ commented the not go enough recommendation of (75) "We recommend that admissions allegedly made to the police outside the police station, whether tape recorded during beginning be the the to suspect put or not should first interview the tape at the station. recorded of Failure to do this may render the alleged confession inadmissible. " This recommendation has found its way into the new Code C which requires the defendant to the verify an alleged oral confession on an opportunity to give police failure C. Code A 2A P. 11 in to comply with this requirement might well tape: breach lead therefore to the substantial probably and and significant a constitute The S. 78. does taped the under new provision confession not non exclusion of however, cover an alleged confession made after a formal interview.

143

The RCCJ leave the door open for a conviction on a 1/verballed"confessionwhen they argue, " if however, the suspect on having the confession put ...him it her does to the tape, or not confirm confession on The be inadmissible. should not automatically be justify to the evidence circumstances may still such as being put before a jury to weigh up." (76)

This is unsatisfactory, for only a rule requiring all confessions to be taped will "verballed" the eradicate problem of confessions. The argument here is not solely based on the avoidance of individual wrongful by convictions such a rule on non taped confessions, but is also based on the legitimacy of the criminal justice system itself. A major step in restoring public confidence in the legitimacy of the system would be a public pronouncement in the shape of a statutory provision that no confession is to be admitted in evidence unless tape-recorded or made in the presence of an independent third party. The public fabrication being that the tackled grave problem would see of police of evidence was in a direct, dramatic fashion. Professor Dennis has written, "One of the ways in which the law of evidence promotes legitimate verdicts in criminal casesis by excluding if it apparently relevant evidence carries systemic risks its " unreliability of which renders probative value uncertain. (77)

Of course, there are important exceptions to the principle that evidence which carries from is For identification trial. example, excluded systemic risks of unreliability evidence though notoriously unreliable and the cause of many wrongful convictions, is not subject to a general exclusionary rule. The great importance of such evidence in the proof of guilt in certain cases (such as street offences) mentioned by Lord Widgery in Rv Turnbull (78) is no doubt the justification for the general admissibility for Court Royal Commission Crown 'Me identification the study evidence. of illustrated that identification evidence is of some importance in about one-quarter of Devlin Lord (79) tha4 wrote cases. contested "The problem peculiar to evidence of visual identification is that this evidence, because of its type and not because detected latent defect be has its that a may not quality, of by the usual tests."

144

However, only poor quality identification by other evidence is unsupposed withdrawn from the jury. Identification evidence is generally admissible subject to a Turnbull warning from the judge to the jury on the dangers inherent in identification evidence. A rule of inadmissibility for non taped confessions would be declaratory of an official position that a potent source of miscarriages of justice in the past, "verbafled by longer is the confessions" police no even a possibility. This would have important legitimacy in for has Pattenden the the effects restoring of system, as written, "The manufacture of evidence by the police, which is West Nfidlands Serious Crimes to the not confmied Squad, is a matter of grave public concern." (80)

On August 14th 1989 the Chief Constable of the West Midlands, Geoffrey Dear disbanded his entire Serious Crime Squad. In the preceding year twenty individuals charged with serious offences had either been acquitted or had charges dropped against them after they alleged that confessions allegedly made in police custody had been fabricated by the police. It should be remembered that it was the West Midlands C.I. D. who conducted the investigation into the Birmingham pub bombings which led to the wrongful conviction of six men. Two of the six alleged that the police fabricated oral admissions which were used to convict them. Indeed, the saga of the West Midlands Serious Crime Squad continues to reverberate in the criminal courts. In 1994 the Court of Appeal quashed the convictions of two men Williams and Smith West Midlands Crime the to to to rob officers of who allegedly confessed conspiracy Squad in 1985. T'he Court of Appeal commented that, "... this court deeply regrets that these two appellants were convicted on account of the evidence of police officers whose later has been discredited in the casesto which only conduct have " 1) (8 referred. we

In considering the authenticity of confessions issue and possible reforms in this area it is important to keep in mind the public policy considerations borne out of the in justice (82). recent cases years of revelations of miscarriages

145

Footnotes to Chapter 4

The Authenticity of Confessions David Griffiths. Series at p. 3.

"Confessions" 1994, Scottish Criminal Law and Practice

(2)

Rv Roberts [1953] 2 AU ER. 340.

(3)

Mirfield, "Confessions"at p.2.

(4)

Ajodha. v State [1982] AC. 204 at p.222. See also: Thongjai v The Queen. The Judicial Committee of the Privy Council [1997] 3 WLR 667 held that while the statements considered in Ajodha v State were written statements the principle stated therein applied also to oral Lord Hutton admissions. said that where the prosecution alleged that the defendant made an oral admission and the case was raised on behalf of the defendant that he did not make the oral admission and that he was ill treated by the police before or at the time of the alleged admission, two issues were for first, The judge the were not mutually exclusive. was raised which which to decide, was whether on the assumption that the alleged oral admission was being for it inadmissible involuntary. The the made was as second, which was jury to decide if the judge ruled that the alleged admission was admissible in fact in the admission was made. evidence was whether

(5)

Wigmore on Evidence, Volume III at p.303, Chadbourn Revision.

(6)

ibid, at p. 303. ibid.

(8)

Dickson, W. G. "The Law of Evidence in Scotland" (2nd edition by P. J. H. Grierson 1887) quoted in David Griffiths, "Confessions" p. 128,1994. ,

(9)

Mr. Justice Morand, Ihe Royal Conunission into Metropolitan Toronto Police Practices (Morand J. Conunissioner 1976), quoted in Ed. Ratushny "Self-Incrinlination in the Canadian Crin-ýinalProcess" 1979 at p.30. Wigmore on Evidence, Volwne IIL p. 304.

(11)

Ibrahim vR [1914-151 All ER. 874 at p. 879. Rv Male and Cooper (1893) 17 Cox C.C. 689. 12.

(13)

RvThompsm[189312QB.

(14)

Rv Pattinson (1973) Cr. App. R. 417 at p-423.

(15)

ibid at P.424.

(16)

ibid at p.426. Rv Tumer (1975) Cr. App. Rep. 67 at p.77.

(18)

RvIbrahim

[1914-151 AllERRepatp. 880. 146

CLRC Eleventh Report (1972) paragraph 64. (20)

4 June 1984 Debates House of Lords, Vol. 452.

(21)

J. Morton, "Guide to the 1994 Criminal Justice and Public Order Act " 1994, at p. 18.

(22)

G. Williams, The Proof of Guilt 1963, at p.324.

(23)

1962 Royal Commission on the Police, paragraph 369.

(24)

ibid, paragraph 370.

(25)

CLRC Eleventh Report 1972, paragraph 52.

(26)

Sir Frederick Lawton "Tainted Police Evidence", The Law Society's Gazette, 8 May 1991 at p.2. Vol. 88.

(27)

ýFheTimes, Wednesday June 13 1990, at p. 17.

(28)

RCCP (198 1) paragraph 4.8.

(29)

A Zander and P. Henderson, "Crown Court Study", Research Studv No. 19, The Royal Commission on Criminal Justice at p.99.

(30)

Roger Leng, "A Recipe for Miscarriage: The Royal Comn-iission and Infon-nal Interviews" in "Criminal Justice in Crisis" 1994, at p. 173.

(31)

Rv Keenan [ 198912-All ER. 598 at p.609.

(32)

Professor I. H. Dennis, "Miscarriages of Justice and the Law of Confessions: Evidentiary issues and Solutions" [1993] Public Law 291 at p. 310.

(33)

Rv Scott [1991] Crim LR 56. The miscarriage of justice cases based on had have judicial to an effect on manufactured police evidence also seem hearsay In Rv in towards the the proceedings. rule criminal value of attitudes Kearlev (1992) Lord Ackner commented that the old justification for the hearsay rule lat it protected the court from manufactured evidence was in by the recent revelations of police manufacture of evidence such vindicated in Cross Birmingham Lord "Professor Six: Ackner the commented: cases as his book Evidence, stated that a further reason justifying the hearsay rule was the danger that hearsay evidence might be concocted. He dismissed this as 'simply one aspect of the great pathological dread of manufactured evidence lawyers late beset English the of eighteenth and early nineteenth which known Lordships Some to your regretfully recent appeals well centuries'. demonstrate that currently that anxiety rather than being unnecessarily morbid is fully justified" [ 1992] 2 All ER 345 at p. 366.

(33b)

Professor 1. H. Dennis "Miscarriages of Justice and the Law of Confessions" [ 1993] Public Law, at p. 3 10.

(34)

Rv Keenan [ 1989] 2 AH ER at p. 604.

(35)

ibid at p.609.

(36)

Rv Callaghan (1979) 69 Cr.App- Rep. 88 C.A.

(37)

Rv Britzman, Rv Hall [198312 All ER 369. 147

(38)

ibid at p. 372.

(39)

Rv PoweR [ 1986] 2 All ER 193.

(40)

The Royal Conunission on Criminal Justice Report (1993) p. 126 footnote 15.

(41)

Rv Walsh (1990) 91 Cr. App. R. 161 at p. 163.

(42)

Rv Weerdesteyn [1995] Crim. L. R. 239.

(43)

Rv Absolam (1989) 88 Cr. App. R. 332.

(44)

Rv Chmg (1991) 92 Cr. App. R. 314

(45)

R. Leng,, "A Recipe for Miscarriage: 'Ibe Royal Commission and Infon-nal Interviews" in "Criminal Justice in Crisis" 1994, p. 173 at p. 175.

(46)

ibid at p. 179.

(47)

ibid at p. 179.

(48)

Mike McConville, Andrew Sanders and Roger Leng, "The Case for the Prosecution: Police Suspects and the Construction of Criminality" 1991 at p.78.

(49)

J. Baldwin, "Preparing the Record of Taped Interviews", Research Study Number 2, The Royal Commission on Criminal Justice.

(50)

Rv Delaney (1989) 88 Cr. App. R. 338 at p. 340.

(51)

ibid at p. 342.

(52)

Rv Barry (1992) 95 Cr. App. R. 348 C.A.

(53)

P. Mirfield "Confessions" 1985, pp. 3-4.

(54)

Rv Canale [1990] 2 All ER 187.

(55)

ibid at p. 191.

(56)

ibid.

(57)

John Baldwin, New Law Journal May I ItI4 1990, p.662, Volwne 140.

(58)

M. McConville, "Videotaping Interrogations: Police Behaviour on and off Camera" [1992] Criminal Law Review at p. 602.

(59)

The Confait case reported as Rv Lattimore (1975) 62 Cr. App. Rep.53 CA.

(60)

Sir Henry Fisher, The Fisher Report op. cit.

(61)

Rv Mackenzie (1993) 96 Cr.App. R. 98 at p. 110.

(62)

JUSTICE "Report on Nliscarriages of Justice" 1989.

(63)

R. Reiner "Chief Constables" 1992 at p. 148.

(64)

D. Dixon, "Law in Policing" 1997 at p. 152. 148

(65)

McConville, Sanders,Leng, "The Case for the Prosecution" 1991 at p.58.

(66)

ibid at P.60.

(67)

R. Leng, "Pessimism or Professionalism? Legal Regulation of Investigations Noak-s, M. L. PACE" in "Contemporary issues in Criminology", after editors Levi, M. Maguire 1995 at p.214.

(68)

Rv Canale [ 1990] 2 AH ER 187 at p. 190.

(69)

Rv Scott [1991] CrimLR56CA.

(70)

A. T. and T. Istel Ltd. v Tully [ 1992] 2 All ER 523.

(71)

RCCJ (1993) paragraph 50 at p-61.

(72)

Rv Tumer (1975) 61 Cr. App. Rep.67 at pp.76-77.

(73)

1. H. Dennis, "Miscarriages of Justice and the Law of Confessions" [1993] Public Law, p.308.

(74)

Quoted in "Norman Birkett" by H. Montgomery Hyde 1964, at p.245.

(75)

RCCJ (1993) paragraph 50 at p.61.

(76)

ibid.

(77)

1. H. Dennis., "The Criminal Justice and Public Order Act 1994: The Evidence Provisions" [ 1995] Criminal Law Review at p. 13.

(78)

Rv Tumbufl [1977] Q.B. 224.

(79)

P. Devlin, "The Judge", 1979 at p. 192.

(80)

Rosemary Pattenden, "Evidence of Previous Malpractice by Police Witnesses [1992] Criminal Law 549 5ý7. Edwards" Review Rv at p. and

(81)

Rv Williams and Smith [ 1995] 1 Cr. App. R. 74 at p.8 1.

(82)

Beyond the scope of this thesis is the problem of the authenticity of alleged but fellow to the to police other parties, such as confessions made not dicussion brief "cell For the of problem of so-called confessions" a prisoners. book Infon-ners Supergrasses 1995 261. It Morton's and at p. would on see judges English For treat that such confessions with most great caution. appear for Marsh Terry Marsh in the trial attempted murder, of was alleged example, to have made a verbal confession about the attempted murder to another Mr. Justice Fennell in prison. stated with regard to this prisoner on remand law, his does "As strict evidence a matter of not require evidence, direction be judgment it in But to and my you, would very my corroboration. for independent before look indeed to support you proceeded to act on wise in Quoted G. GudJonsson, "The Psychology his basis the of evidence". of Interrogations, Confessions and Testimony" at p.22 1.

149

CHAPTER 5 THE LEGITIMACY

OF CONFESSIONS

Introduction

This chapter aims to analyze the legitimacy of confessionsissue. The chapter will by by is legitimacy issue. Then the the start examining what meant of confessions look legitimacy three to the chapterwill at responses problem. The chapterwill then look at the caseof Rv Mason (1) as a leading caseon the legitimacy of confessions issue. The next section will look at Section 58 of PACE; the right to legal advice and how the section has been interpretedby the courts. At the beginning of this section there will be a discussion of the pre PACE situation with regard to accessto legal breach The Judges' Rules. the to the advice and courts' attitude police section of following will look closely at Section 76 2(a) of PACE and its interpretation by the by looking The by courts. chapterwill close at undercovermethods the police and the legitimacy of confessionsso obtained.

The le6timacy of confessions issue The problem of the legitimacy of confession evidence is not fundamentally a proof issue legitimacy involves The the problem. of of confession extra-probative in being from reliable confession evidence excluded considerations which may result the criminal trial. Galligan makes the following useful distinction with regard to the law the of evidence: purposes of

"There are two distinct issues: (i) one concernsrules about the probative value of evidence,(ii) the other concernsrules for the exclusion of evidence reasonsother than about how The is in (i) to value. question reasonsof evidentiary deal with evidencethe probative value of which containsa degreeof risk that it will be usedimproperly. Evidence from from involuntary from hearsay an confession or gained in its difficult it is vary reliability and an accomplicemay to know in any eventhow much weight it should be given ... The guiding objective in thesecasesis rectitude of outcome, the question is, given somesuchuncertainty or defect, how best is rectitude achieved; what is the rational procedurefor internal These issues to accurate an outcome. obtaining are issue In is (ii) the proof whether certain kinds of evidence, 150

be likely therefore to value and probative of are which be in in relevant achieving rectitude should excluded order to advanceother values or policies, such as confidentiality, national security or the protection of an accusedagainstthe based issues Ibese they external of proof; are are on police. decision making. values which competewith rectitude of The exclusion of evidencein order to uphold thosevalues loss the of probative evidenceand thus a may mean lower level of accuracy." (2)

Therefore the issue of the legitimacy of confessions may result in the exclusion from

the trial of confession evidence which is authentic and otherwise reliable. This is justified on certain extra-probative grounds. Identifying these extra-probative considerationsand the correct evidential responseto a case where the police have justified is violated principles which are on extra-probative grounds a controversial free The because politically and chargedprocess. possibility of guilty offendersgoing from legitimacy brings the their trial of exclusion of reliable confessions on grounds into focus the sensitive issuesinvolved in this areaof confessionlaw. The caseof Rv Mason (1987) C.A. is a good example of a reliable confession which was excluded on , 'legitimacy' grounds by the Court of Appeal. In that case the defence conceded the truthfulness of the confession made but because of the crucial fact that the police had lied to the suspect's solicitor about the state of the evidence against him, the have been held Court S. 78 Appeal. the under of excluded confession should The issue of the legitimacy of confessions is therefore a more open and controversial topic than either the creditworthiness or authenticity issues, where disagreement tends to focus purely on the issue as to whether the law does too much or too little to have Ibus that some commentators confessions are authentic and reliable. ensure for for non taped confessions as a response to the a strict exclusionary rule argued draconian. The RCCJ (1993) (4) issue. (3) this too proposal rejected as authenticity The fear was too many reliable confessions would be lost by any such rule. On the be have S. 76 2(b) issue that argued should some commentators creditworthiness he judge to to was not satisfied exclude a confession where reformed so as require a S. 76 2(b) is limited At its to unreliable confessions the to moment reliability. as done"', by "anything therefore not all unreliable confessions are or said caused however Ibe RCCJ by that, test. commented this covered

"In our view the safeguards under PACE against false foolproof comprehensive and while not confessions are (5) sound. are substantially

151

The RCCJ also endorsedthe principle that it was desirable that if a confessionhad beenmade it was for the jury to assessits reliability. (6) Disputesover the legitimacy involving be questionsas to what of confessionstend to of a more political nature for be to the exclusion of extra probative considerationsshould recognisedso as allow is confessionevidencewhich authenticand creditworthy. This is not to say, however, that there is not some consensusof opinion on the legitimacy issue. Despite a few historical exceptions (most notably Bentham, Wigmore and the minority opinion of three membersof the CLRC 11th Report) (7) it is generally agreedthat no confessionshould be received which has been obtainedby degrading inhuman, threats treatment or torture. the violence, of violence or use of Those few commentatorswho have disagreedin the past assertthat the matter of the fact of violence in the obtaining of the confessionshould be treatedas a matter going to the weight of the confessionbefore the jury and that the police officers involved in the use of violence againstsuspectsshould be disciplined by way of the criminal law Packer 'crime this summary and other punitive mechanisms. provides a useful of (8) to the control' approach admissibility of coercedconfessions: "The evil of a coercedconfessionis that it may result in the conviction of an innocent man. It is a factual question in eachcasewhetherthe accused'sconfessionis unreliable. A defendantagainstwhom a confessionis introducedinto have jury that the to the convince evidenceshould circumstancesunderwhich it was elicited were so coercive that more probably than not the confessionwas untrue. In fact determination issue the that trier of should on reachinga in be to the other evidence the of course entitled consider if it points toward guilt and tendsto corroborate caseand the confession,shouldbe entitled to take that into accountin determiningwhethermore likely than not the confessionwas To is this untrue. say not to say that the unlawful useof force by the police againstan accusedis ever to be condoned. The point is simply that the use of force is not in itself determinativeof the reliability of a confessionand should thereforenot be conclusively againstthe admissibility of a " confession.

Bentham it seems, would even appear to advocate (9) the use of torture of suspects in Bentham that to torture thought to obtain confessions was use certain circumstances.

be defeating that the great possibility such confessionswould unreliable. given self Bentham said of confessions obtained by torture: "A confession so obtained is no (10) proof at all".

152

It is not often assertedby thosearguing for the exclusion of a confessionobtainedby is justification the the that unreliability main violence or torture of the great risk or interrogative focus is The the unacceptability of such prohibition. methods rather on in a civilised democratic society, irrespective of the probative worth of confession be by independent if Even true evidenceso obtained. proved such confessionscould fully is justified is that the on extra probative grounds. evidence, exclusion argument Indeed S.76 2(a) of PACE assertsthat the issueof whether the confessionis true is an irrelevant factor in assessingthe admissibility of the confessionwhich is challenged becauseof oppressionin its obtaining. Moreover S.76 (5) of PACE also asserts, "Evidence that a fact to which this subsectionapplieswas discoveredas a result of a statementmadeby an accused be how it personshall not admissibleunlessevidenceof by him discovered is his behalf. " given was or on

Therefore if the confession obtained by oppression leads to the discovery of other incriminating evidence, such as the murder weapon, then no mention can be made by the prosecution that these facts were discovered as a result of the accused'sconfession The reliability of the confession is thus totally negated as having any evidential value its in there where was oppression obtaining. The only qualification on this proposition is the existence of S.76 4(b), a minor is the the prosecution, where confession relevant as qualification which allows himself in the that writes or expresses a particular way, to accused speaks, showing he does is However, "so to that the confession necessary show so". of as use much lead its to to the exclusion as a obtain any evidence should perhaps use of violence is law. is Indeed there an even more radical position which to the effect that matter of the use of serious violence in the course of the police investigation should lead to the dissent Royal Zander's the this to the prosecution: note of on see abandonment of Cornn-iission on Criminal Justice. The true disagreement in the area of the legitimacy of confessions is away from the issue of the use of violence or inhuman treatment in obtaining confessions. It rather demand due the exclusion of confession process values which might concerns other due Examples because those these of violation process norms. police of of evidence

include due the to the privilege against values self-incrimination, right process other legal advice and the right not to be held incommunicado. The first of thesevalues is law, find in form in the two the other expression statutory the creation of common Police 58 Criminal S. Evidence 56 Act. S. the of and and shapeof 153

The questionof the extent to which the criminal trial should be preparedto forego the breach because admission of reliable confessions of one of theseprocedural rights of is at the heart of the debatesurroundingthe legitimacy of confessionevidenceissue. It is proposed now to outline a few differing responses to this issue of the recognition of due process values, other than the prohibition of violence or the threat of violence in the obtaining of confessions. All three responses outlined can be located in the modern English debate on this subject. It is not intended to provide an exhaustive account of all possible responsesto the issue, rather it is intended to outline the major positions.

Three responses to the legitimacy'

problem

One view holds that, save with regard to the use of violence or torture etc. the law should not attempt to vindicate procedural rights through the mechanisms of evidence from the criminal trial. If procedural rights have been violated by the police then this is a matter for controlling mechanisms independent of the law of criminal evidence. This view might be based on the premise that, it since the object of a criminal trial should be to find ... if follows is it the that ideally all evidence out accused guilty, be is should admissible which relevant in the sensethat it tends to render probable the existence or non-existence of fact innocence depends. " the any on which question of guilt or (CLRC 11th Report) (11)

This view argues that some relevant evidence may be needed to be excluded because for its This to the of potential substantial unreliability or undue prejudice accused. tends to undermine Bentham's claim that to maximize rectitude of decision making all for fact, be hence by the trier admitted assessment of relevant evidence should Benth,am said, "Evidence is the basis of justice: exclude evidence you exclude

It may well be that rectitude of decision making is sometimesbest servedin the long is by difficult to classes of evidence whose probative weight very rules excluding run be jury by Hence the may which the existence and potentially very unreliable. assess

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for law The hearsay S. 76 PACE 2(b) example. rule at common of and the of Report 1 1th CLRC that Benthamite the with regard to argues also modified view of is by needed to the standards of a civilised confession obtained violence, regard by oppressive methods society and that an exclusionary rule on confessions obtained is therefore justifiable as a qualification on the basic principle of the admissibility of relevant evidence. However, on this view to vindicate other procedural rights through the exclusion of confession evidence is an inappropriate response. By "vindication" is meant the possible response of the law to a situation where the police have infringed the pre-trial "rights" of the suspect, such as the right to legal advice. The exclusion of by "vindicating" is police of evidence obtained violation of such a right one method a right that the legal system recognizes as a "right". The modified Benthamite approach for CLRC Report in 1 1th the rejected a role vindicating the of criminal evidence procedural rights of the suspect through the exclusion of evidence. (12) This is especially so given the possibility of vindicating those procedural rights through other mechanisms such as civil actions against the police, police internal disciplinary action or official complaints procedures. Any breach of the provisions independent the treatment regarding of suspects of the prohibition of violence on be treated as a matter going to the should, where relevant, obtaining confessions but the weight of confession not its admissibility. If the suspect was wrongfully denied access to a solicitor then this is a factor solely going to the weight the jury deciding in Such the to the confession whether accused. place on convict should was the approach also of the RCCP in 1981, whose report assertedthat, " in general we consider that the exclusion of evidence ... ... " is not a satisfactory way of enforcing compliance with rules. (13)

The RCCP adopted a much more Benthamite attitude to the admissibility of For RCCP, PACE the the than scheme eventually adopted. all confessions be for by jury to the those to confessionsobtained admitted except confessionswere (14) torture. violence or If there have been breachesof the provisions other than the prohibition on violence RCCP, the to this, should go to the weight rather than the admissibility then according of the confession, of since reliability is the primary purpose of the Code of ... Practice for interviewing suspects." (15)

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Consequently,

" the reliability of confessionsobtainedin its breachmust .. be open to question; and it would not thereforebe right for be in breach Code the to of statementevidenceobtained by accepteduncriticafly and without comment the criminal for The advocate any accusedwho conteststhe courts. truth of a confessionalleged to have beenmadeby him win have considerablescopefor discrediting the evidenceof that has been if it obtainedwhen the provisions of the confession Code have not beenobserved." (16) However, there is a challengeableassumptionat the heart of the position of the RCCP here. It assumesthat the main justification of a due processvalue such as the right to legal advice is to render confession evidence more reliable. However, the right to legal advice can be justified on grounds which are independent of a concern to improve the reliability of confession evidence. The main justification for the right to legal advice is the importance of the value of informed participation of suspects in the process to which they are subjected to. The recognition of this may lead us to conclude that treating wrongful denial of the right to legal advice as going is its inadequate to the to weight of a confession an response violation. It may solely be that in an appropriate case the exclusion of a confession is warranted because of breach legal be An the to case might police of right advice. appropriate where the legal bad faith deny in Lord Lane in R the to police suspect access advice. made clear have difficulty" "little in Alladice (17) (1988) that v a court would excluding a if 76. in Section 78. Section those circumstances under not under confession ) A second major position takes procedural rights and their violation by the police as from This trial. the the to the evidence question of exclusion of confession central justice fit that the the to assumption since criminal system sees view proceeds on bestow certain rights on suspects in the pre-trial investigative process then the most have been is to those they to rights when vindicate violated appropriate mechanism by has been the obtained violation of one or more of those evidence which exclude by be denying An the wrongfully a confession obtained example might rights. legal Section 58 PACE. If his the to of advice, a statutory right under suspect right it is be is be legal then to taken that there to seriously arguable some must advice right by for had its A the police. right which violation no remedy or real consequence does for its deserve "a A this theory, the title not, on violation of right". consequence "right" with no remedy would then be merely aspirational or 'a good idea' - this in legal in to the the police station meant under of access advice principle essence what The JudgesRules under the pre PACE regime. Breach of the principle was treated 156

before jury. in the the to the confession of solely weight many cases, as a matter going However, S.58 of PACE is on a statutory footing and has been described by Hodgson J. in the leading case on the section as "one of the most important and fundamental There is no tort (19) of "denying access to legal advice wrongfully" so the question remains as to what should be the consequence of a finding of a wrongful denial of legal advice? rights of citizens". (18)

The evidential exclusion at trial of a confession obtained by wrongful denial of the S.58 right is one way in which the right to legal advice can be given real meaning it has the that confmns right weight in our legal system and is not just a rhetorical be It claim. might arguedthat this method of vindicating the right has a great social cost, namely the exclusion of relevant and potentially reliable evidenceof guilt, the confession of the accused. However, recognition of a right by society has been by leading jurisprudential scholar of the past twenty years, R. A the understood Dworkin asprecisely involving a social cost. ProfessorDworkin comments, "There would be no point in the boast that we respect individual rights unless that involved some sacrifice and the in be that we give up whatever sacrifice question must benefits from marginal our country would receive overriding those rights when they proved inconvenient. " (20)

The loss of some convictions in caseswhere the police have deliberately breached the legal be to to the right advice prior making of a confession may more than a marginal loss to society, but if the right is to be given real meaning it may be that the price is worth paying. Professor Ashworth is the leading proponent of the kind of analysis presented above. He has set out the terms of the theory as follows:

"If a legal system declares certain standards for the conduct investigations be it then that of criminal can argued citizens ... be facilities have corresponding rights to accorded certain and be in If legal is to treated the certain ways. not system to it is then those rights arguable that a suspect whose respect have been infringed be thereby should not placed at any rights disadvantage And the appropriate way of ensuring that the ... does disadvantage for is this the court at not suffer suspect trial to have the power to exclude evidence obtained by improper means." (2 1)

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This theory has a more general application than purely the exclusion of confession is It breach in capable of extension to the evidence obtained of procedural rights.

exclusion of illegally and improperly obtained real evidence such as that obtained from an illegal searchand also appliesto evidenceobtainedby entrapmentor trickery: see especially the discussion on the protective principle in Chapter 7. This approach to the problem of the legitimacy of confessions and the legitimacy of illegally obtained real evidence or evidence obtained by entrapment involves difficult for be interests "rights" to to the extremely choices as what protected as are be is likely This the to purposes of exclusion of evidence. a controversial process because the cost of identifying an interest as a right on this theory is the potential in exclusion of evidence which results a patently guilty offender escaping conviction. These are all serious questions which any advocate of what is called "the protective face. principle" must The exclusion of relevant and reliable evidence on this basis has a great social cost the non conviction of offenders, some of them dangerous, on the ground that the Obviously when the right in question is the right not to be is largely torture then to the uncontroversial. protective principle or violence subject

police violated a "right".

Ashworth however, makes clear that the protective principle has much greater scope than the exclusion of confession evidence obtained by violence on the part of the investigators. (22) The English cases on breach of important provisions of PACE and the Codes of Practice in cases of the obtaining of confession evidence can arguably be interpreted leading In Rv disclosing the the case of protective principle. a weak version of as Walsh (23) Saville J. commented that if there had been significant and substantial breaches of S.58 the right to legal advice or the provisions of Code C relating to the interviews, recording of

facie least fairness the then at standards set prirna of ... by Parliamenthave not beenmet..."

is likely, inevitably, be though to obtained so not excluded and therefore a confession from trial tmder S.78 of PACE. Ashworth comments that a strong version of the

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breaches PACE that of or protective principle would exclude any such qualification the Codes need to be "significant or substantial" before a confession is likely to be Ashworth in principle endorses a stronger version of the protective fully" be Rv Walsh "if found is in to principle than rights are respected cases such as (24) excluded.

However, as Ashworth points out,

"In terms of practical politics there may be some pressure to qualify the principle so as to avoid losing 'good' for departure had that convictions a procedural really little effect on the defendant's enjoyment of rights. " (25)

However Ashworth can be criticized here. It may be the case that the "significant and substantial" test propounded in Rv Walsh and in Rv Keenan is not a response to "practical politics" but is in fact a qualification based on principle. This is to note that "fairness" under S.78 has been interpreted by the Court of Appeal as meaning fairness to the Crown as well as fairness to the defendant: see Rv Smurthwaite (1994). (26) It may be the case that when the judiciary refer to the need for breaches of PACE and the Codes to be "significant and substantial", due weight is being given to the interests from because If Crown. trial the merely of an evidence was excluded of inconsequential breach of PACE and the Codes, as happened in Rv Fennelley (27) then the interests of the Crown would not be given sufficient weight by the judiciary here 'nerefore "fairness the the test the proceedings". of would upset and exclusion formulated in R, v Walsh represents a principled judicial response to PACE and the Codes which was a negotiated settlement between the interests of suspects and he implies Ashworth the misrepresents situation when police/prosecuting agencies. that the "significant and substantial" test is a result of the pressures of "practical judicial is test the a principled response to the negotiated settlement of politics", rather PACE. It may be that the PACE Act was the result of practical politics - but this in interpretation be levelled judiciary Section 78. their the at of criticism should not A third major view on the question of the vindication of due process values through discourse by "rights'-* the that their of argues and vindication the exclusion of evidence inappropriate. is On it is law this evidence view the not one of the of criminal law to the the of criminal evidence vindicate pre-trial rights of the suspect of purposes

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through the exclusion of evidence at the trial. I. H. Dennis argues,

" that the law of evidenceis not overtly concernedto ... law is Ibe individual rights ... of evidence an enforce for What protecting rights. unsatisfactorymechanism are neededare compensationor punitive remedieswhich in " (28) are effective and available all cases.

Hence where a defendantpleads guilty at trial there is no opportunity for the court to his have been by the police, through the vindicate pre-trial rights which may violated from the criminal trial. exclusion of evidence The main argument for this claim is that the protective principle (the "rights vindication model") sets up an incoherent model. This model of the criminal process is that truth-finding argues subject to the need to recognise certain extemal values These truth-finding. the which operate as side constraints as values are the pursuit of "rights" of the suspect in the pre-trial investigatory phase. Dennis comments,

Individual rights and the public interest in truth-finding do not seem to be commensurable values which can be do 1be 'balanced'. to effort so simply meaningfully " (29) theory. produces an unsatisfactory

The protective principle has to address in what circumstances violation of a right will lead to the exclusion of relevant evidence from the trial. It also has to identify first of forward by Professor Dennis, On "rights" the there theory put actually are. all what by has been in is important the the violated police not whether a right question breach issue is the of statutory rules governing the rather whether obtaining evidence, investigatory process by the police is so grave that the integrity or legitimacy of the by be itself the admission of evidence tend to trial process undermined would breach by that of the rules. obtained

Such a view could still acknowledge the concept of "a right not to be subi ect to legal "right but justification for interrogation" during to the the or a advice" violence law of criminal evidence to rule inadmissible evidence obtained in breach of those had been breached but for because is that the se a concern a right per norms not integrity of the trial processdictatesthe exclusion of the evidence. This is not to 160

downplay the importance of the "'right not to be subject to violence". Indeed, a police force full be to the of the officer who violated that right would subjected rightly criminal law as well as other punitive/disciplinary mechanisms as well as possible forward by Dennis, Professor law. However, in the theory tort civil actions put on exclusion of such "tainted" evidence is necessary for reasons which are internal to the does To Ashworth trial that the the purposes of and verdict. argue as criminal confession should be excluded because of the violation of a "right" is to suggest that the law of criminal evidence is responding to a concern or consideration external to the non-nal purposes of the law of evidence, i. e. that to vindicate a "right" there must be a "side constraint" on the usual purposes of the law of criminal evidence. Those usual purposes are securing the accuracy of the fact finding process by regulating the Dennis admissibility of unreliable or prejudicial evidence. comments,,

"Apparently reliable evidence may need to be excluded if it carries significant risks of impairing the moral authority is because is in interest This it the the of verdict. not public that verdicts should be returned which lack moral authority. They are not satisfactory either for justifying individual for law. the the criminal punishment or affirn-ling values of If relevant evidence is excluded here it will be becausewe internal, to not external are giving effect values which are to the process of proof. " (30)

Therefore, although there is a consensus amongst commentators as to the need for be by inhuman to treatment automatically excluded violence or confessions obtained from trial the account or justification given for such a rule differs among the important it is because For Ashworth violation of of an excluded commentators. by be because if it Dennis For the was obtained confession should excluded right. based impair the this then on will seriously moral authority of any verdict violence such evidence. With regard to other procedural values it is not immediately clear why there should be because be legitimacy of excluded at all: why should a confession problems of breach of a procedural right other than the right not to be subject to violence? It is detained is is identify individual important try to to what at stake when an therefore for interrogation by the police. The following is offered as an attempt to identify the issues: central

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Custodial interrogation concernsthe detention of the citizen by a core agency of the in for the the primary purposeof questioning citizen order to produce evidence state such as a confessionfor use in later criminal proceedingsagainstthe citizen. Given this statement,it is important therefore that there are clear rules regulating how the citizen should be treatedby the police in custody, for the position of the citizen as a suspectin custody is part of a wider relationship between the citizen and the state. Those writers who advocate due process norin in the criminal justice system feature is the the recognise exercise of state coercion when a suspect crucial of forcibly detained for interrogation. As Herbert Packerput it, due processis a value systemwhich views 11 efficiency in the suppression of crime (as) ... ... in individual to the the subordinate protection of his confrontation with the state." (3 1)

Packer makes clear that although the model of due process encounters its rival of the fact in that to the reliability of model's own ground respect crime control model, on finding processes this is not the heart of the difference between the two models. The due process model not only argues that its precepts will lead to more accurate fact finding than following the precepts of the crime control model, due process is also informed by a set of values which are independent of reliability concerns. As Packer comments, "... in point of historical development the doctrinal from due demands the the process of pressures emanating from have tended to an original matrix of evolve model into for the reliability values maximization of concern far Tbese different values can reaching. and more quite be expressed in, although not adequately described by, the concept of the primacy of the individual and the limitation " official power. on complementary concept of (32) Of course, some due process values such as a right to legal advice can be justified both on "reliability" grounds and also on grounds independent of a wish to increase from issue On the advice a solicitor reliability the reliability of confession evidence. is likely to reduce the coercive pressuresof custodial interrogation on a suspect, as the RCCP recognised, the presence of a lawyer will.,

11 provide protection and support to the suspectduring ... interview. " (33)

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If the coercive pressureson a suspectare reduced then it is likely that the risk of a false confessionbeing producedwill also lessen. Furthermore, a lawyer present provides independent witness to the interrogation process and to the subsequent terms of the confession which is likely to inhibit undue independent being the the pressure court with placed on suspect and also provides interrogations done Tape interrogation. evidence of what was said and recording of at is not a complete panacea, for comments can be made before the tape is switched on by the police or during breaks between interrogations. A lawyer may well notice what the tape misses. Independent of these benefits to the accuracy of the fact finding process of the court when assessing confession evidence, which a solicitor who was present at the interrogation can provide, a right to legal advice serves interests which are independent of the fact finding process at trial. Legal advice on the strength of the his the police case against suspect and possible options to co-operate, remain silent or for informed innocent his important the offer an explanation value of conduct, serves participation of the suspect in the process to which he is subject. The ability of in informed in to the process to which they are subject to way persons participate an both have in legitimacy important that the terms to the may pay-offs process, of of individual suspect and to the community as a whole. (34)

The decision in Rv Mason The first Court of Appeal decision to establish that S.78 of PACE applied to Rv Mason. was confession evidence In that case a reliable confession to fire-bombing a car was held wrongly admitted by judge had into Appeal Court that the trial the taken the not on grounds account the of deceit practised on the accused and his solicitor. The Court of Appeal laid emphasis "deceit (35) the the namely practised on the appellanfs vital consideration on deceit, deprecated the police solicitor" and

it particularly on a solicitor whose duty it is to ... ... by false information (the client) unfettered advise from the police." (36) 163

It is unclear what the position would have been if the deceit had beenpractised solely deceit Mason feature in Rv The the the the on on practised suspect. was crucial in heart the solicitor which went to the solicitor could give advisi g of any objectivity his client. If the deceit was practisedsolely on a suspectthen anotherprinciple apart from the need to preserve the value of unfettered legal advice win have to be PACE. Section 78 have inadmissible to the advanced of under admission ruled ProfessorBirch identified the issue in Rv Mason as "the right not to be lied to". This deceit is to the the principle police practice a situation where capable of extension in R be Appeal it Court However, thought the that solely on a suspect. of should not decreed lawyer Mason. lies that to should v all confessionsobtained after a suspect's henceforth be inadmissible. No such general proposition can be located within the judgement. Moreover, it is not clear that "the right not to be lied to" can be located in English pretrial criminal investigations. The use of "information bluffs" by the police (i. e. have fact in the than to pretending more evidence against exists without accused familiar What is the the tactic. made the nature of evidence) a specifying police interfered in Rv Mason that the with the police conduct so objectionable was police by lying is The the the about state of suspect suspect-solicitor relationship evidence. 58 legal he S. PACE to of unfettered advice on what entitled, as a consequence of should say (if anything) to the police. As a consequenceof the He to the solicitor, the his had involvement to the client explain any with the suspect solicitor advised by be lie is Where told to the that then a suspect only police might a a offence. because 76 2(b) S. of the potential unreliability of a could operate situation where is does, It Professor Birch "a too to propose right obtained. strong as confession so for is be lied there a question as to whether this right actually to", to not only not legal discourse be located English it (i. the the within materials and of exists e. can by but how legal ) the this would contravention of alleged right system? criminal fairness "so the of the proceedings" that any confession made adversely affect police 78 be lied S. PACE. "right be A to to" seems therefore of not excluded under should too strong as an unqualified principle as it might extend to ruling inadmissible the by in, R Bailey Smith (37), (1994) tactics the used sort of v and confession obtained held Appeal In Rv Bailey, Court the police the unobjectionable. tactics which of lull false into impression 'false' the to suspects so as a sense of security so created a If in incriminating the their remarks which were recorded police cell. that they made in Rv Bailey have lied had the then they to suspects would not confessed. not police , However, there was not an express misrepresentation in Rv Bailey as there was in R Mason. v

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Perhapsa relevant considerationin the context of the decision by the Court of Appeal in Rv Mason was the nature of the offence and the type of evidence produced. If in a murder case the police lied to a suspect and his solicitor about the state of the evidence against the suspect and then the suspect on legal advice, produces the different take murder weapon then perhaps the court would view on the a admissibility of real evidence than the confession evidence in Rv Mason. English law has always drawn a sharp division in its treatment of improperly obtained has The latter its improperly treatment confessions and obtained real evidence. of been because in just It is that this rarely a confession excluded. context significant has been ruled inadmissible under S.76 this does not affect the admissibility in law of any fact discovered as a result of that confession - see S.76(4). For example, the fingerprints be if it the would murder weapon with on admissible even accused's found as a result of the accused's inadmissible confession. As a matter of strict for deceit it S. 78 the the principle should not matter of the purposes of whether being both in In solicitor results produced. cases the a confession or real evidence suspect is entitled to have unfettered legal advice on whether to co-operate with the it is However, police or not. also true that as a matter of practice, confessions and real different from have English treatment the traditionally evidence received courts. As Birch comments on the Stagg (38) case, "Real difficulty would have arisen had S. produced involvement in the crime: the of convincing evidence The unacceptability of the murder weapon perhaps. have had be to then weighed against strategy would the reliability of the outcome, taking into account the difficulty of detecting the crime and the fact that more failed had to produce a result. conventional enquiries Quite possibly the evidence would have been " admitted. (39)

This is so despite the fact that any confession would likely have been excluded under S.76 2(b) or as in the Rv Hall case under S.78. The point is that the Court of Appeal from deceit the tolerate which produced client real evidence as on a solicitor a might opposed to a confession. Perhaps as a factor influencing judicial decisions to exclude evidence "seriousness of In Mason factor is the too. there although was arson offence was no a offence"

inunediate threat to life in the circumstancesof the case. If the defendantin Mason down in it house he had bum the the to had attempted with and occupants confessed

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following the same deceit practised by the police on,him and his solicitor, then it is interesting to speculatewhat the attitude of the Court of Appeal would have been. For then not only an offender but a very dangerous offender would have gone free following the inadmissibility of the confession. Significantly Rv

Khan (19941 a non-confession case on S.78 establishes that seriousness of offence (40) is a relevant factor on the exercise of the S.78 discretion. The more serious the offence the less likely it is that the evidence will be excluded 78. This is in S. under accord with the exercise of the discretion to exclude the by Lawton L. J. in Rv Turner. (41) Lawton evidence of an accomplice mentioned L. J. commented that the more serious the offence then the greater demands of justice to convict the defendant on the evidence of an accomplice and therefore the discretion to exclude should less likely be exercised. However, Watkins L. J. did comment emphatically at the end of his judgement in Rv Mason that hope think to that we we ought say we never again ...hear deceit being to this of such as practised on an accused person and more particularly possibly on a duty it is him by to solicitor whose advise unfettered false information upon the police. " This comment suggests that whatever the nature of the offence the kind of police deceit practised in Rv Mason will not be tolerated by the Court of Appeal and so will lead to the exclusion of a confession so obtained. Perhaps a differently constituted Court of Appeal might take a different view in the case of a very serious crime such as murder. If a right such as the right to legal advice can be justified on grounds independent of a breach then the to that argue of the right reliability of confessions concern to enhance has before by legal to the the to a police should merely go weight a confession advice jury (the RCCP proposal) (42) may well be an inadequate response to police violation deliberate breach is It the that that that a should affect of right arguable right. of This is the the that nononly effective way confession. subsequent a of admissibility legal be based to right a advice represent can properly values which reliability for legal justification If the the to only right reliability of confessions was vindicated. be breach the that treated to might properly a matter right as going then of advice jury. Yet before the this to cannot the give say, approach effect confession of weight by he in legal is informed to, the a suspect process participation subject of the value 166

this being a value which the right to legal advice represents. The only effective way it is to this of giving effect and supportto exclude a confessionwhere was made value consequentas a deliberatewrongful denial of legal advice.

Section 58 of PACE and its interl2retation by the courts One of the most significant changes in judicial attitudes is in relation to the right to legal advice. It is not even clear that this was considered to be "a right" of the suspect in the pre PACE era. The situation regarding judicial attitudes to breaches of the Judges' Rules reached a low point with the decision in Rv Prager (1972) where the discretion to exclude a confession obtained in breach of the Judges' Rules was doubted by Edmund-Davies J., who said, "'neir non-observance will not necessarily lead to a from being it is confession excluded evidence unless shown that the confession was not made voluntarily. " (43) However, there are cases after Prager in which breach of the Rules did lead to discretion in Rv Voisin (1918) The the exclusion of a confession under confirmed legal have in Rules been basis to the the to to principle relating advice seems access favour decisions defendant's had in been the where access of a number of wrongfully denied by the police. Rv Allen (1977) (44) a decision of Norwich Crown Court, Rv Trickett (1981) (45) decisions Central Criminal Rv Marsh Court, (1985) (46), two the of all excluded and both basis. Rv Lemsatef Rv Elliott (47) in this and reported the same confessions on judicial This indicative Rv Allen, the trend. trend was to admit of were more year as had been breach in they the trial though to obtained of the even confessions he be if In R to the that allowed access a solicitor wished. suspect should requirement had Brown L, Kilner Elliott to the exclude a confession where refused police v judge denied the to said, access a solicitor; wrongly "If the impression should be gained that the judges ought for breaches to punish police officers of the Judges' Rules, that clearly and plainly begs the proper question and is " test. the proper not

Kilner Brown J., being, to rlbe proper test according 167

"... did breachof the Rules render the confessionunreliable?" This comment of Kilner Brown J. is in line with the comment of Lord Diplock in Rv Sang (1979) that it was not part of the functions of the judge to discipline the police over the way in which they have obtained evidence. (48) In Rv Stephen King (1980) the Court of Appeal held that there was no obligation on the police (49) to inform a suspect of his right to speak to a solicitor since the Administrative Directions which supplemented the Judges' Rules said only that the be suspect should allowed to speak to a solicitor, which presupposed a request from him. The Codes of Practice of course, impose a duty now on the police to inforin a his suspect of right to legal advice - Code C paragraph 3.1 -a duty which first arises further is A when a suspect under arrest at a police station. example of judicial for legal is PACE by the to the to attitudes principle of access advice pre provided case of Rv Fell (1984) where the defendant was convicted of murder. The police ignored his requests for a solicitor and his subsequent confession was the only breach him. The judge Judges' Rules but trial the acknowledged of evidence against a his judge in 'Me trial the to were upheld comments of refused exclude confessions. 1985 by the Court of Appeal, It was the pursuit of truth, it was what the police officer justice interests the of which authorised and required sought, him to deny and deprive Peter Fell of the assistanceof a by You that the time of the will remember solicitor ... had been defendant in interview the custody confession ... for more than two days and he had been questioned by detectives two at a time for a total of some eight and a half hours. " (50)

It is interesting in the light of developments under PACE that there is little in the pre PACE law reports to indicate that the judiciary believed that there is a right to legal lead Exclusion denial to exclusion. of confession would very probably advice whose depending idiosyncratic Judges' Rules the matter on the remained an evidence under judges. attitudes of particular After the decision in Rv Swnuel (1988), there can be no serious doubt about the importance the judiciary now attach to the right to legal advice. As Professor Zander decision, (5 1) Appeal Court of said of this

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"T'he decision which was given in December 1987 was a It to the showed that the courts police. considerable shock S. 58 the to with an provisions of were prepared enforce degree " vigour. of unexpected

Reiner and Leigh corroborate the dramatic impact of Rv Samuel "Samuel sent shock waves through the police as it be be PACE to that came would realized painfully interpreted much more stringently than the Judges' Rules." (52)

The significance of Samuel is that the right to legal advice was described by Hodgson J. as, 11 a ftmdamental right of the citizen... " denial by the police will very likely lead to the exclusion of a whose wrongful discretion 78. In the subsequent Section resultant confession as a matter of under first-instance decision of Rv Williams the trial judge excluded the confession because flat drug her in her involvement in importation the time arrest on suspicion of at of there was an interview with customs officers in which she was not told of her right to legal advice. The suspect then allegedly admitted involvement in drug importation. The trial judge took the view that it would be "totally unfair" to include into trial the Rv Samuel interview, (53). the applying evidence of Access to legal advice is not now understood as something that the police should as fair minded individuals grant to a suspect where that is convenient to "the basic it is right of the citizen which understood as a administration of justice", rather is not in the hands of the police to grant or deny. It is important to note that accessto legal advice can be delayed for up to 36 hours but for delay. have been 58(8) PACE S. the on grounds met: of only after strict criteria Research studies on PACE indicate that over two-thirds of suspectsdetained in police However, do their to this right see a solicitor. represents a exercise not stations doubling of the proportion who do see a solicitor compared to pre PACE experience. (54) Judges' Rules that a longer in the they the The police can no reason as could era of

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request for legal advice by the suspect can be denied without proper justification and that any confession obtained will still be admitted into evidence. The obvious reason why the police would wish to prevent a suspect from seeing a solicitor is that the The Codes of solicitor might caution silence in the face of police questioning. Practice specify in Annex B to Code of Practice C that, " Access to a solicitor may not be delayed on the grounds that he might advise the person not to answer any questions." However, for Sharpe (55) in his treatise on Habeas Corpus, this ability of the police to delay access to legal advice in the case of a serious arrestable offence under Section 58(8) is totally unacceptable in that it may prevent a suspect from applying for the writ when his arrest and detention might be unlawful. In Canada in contrast, the immediate legal force has in the Charter of to principle of advice access constitutional Rights and Freedoms, S.1O(b). The later cases of Rv Alladice (1988) and Rv Dunford (1990) can be interpreted as for held it In "comfort the that a confession these providing some police". cases was legal denial to obtained after wrongful advice was not necessarily of access inadmissible under S.78. If the defendant knew of his rights independently of a legal be if legal had then advisor a resultant confession could still admitted even advice been wrongfully denied. In Rv Alladice in holding that,

Dunford (56) the Court of Appeal followed Rv

" the solicitor's advice would not have added anything ... to this particular appellant's knowledge of his rights. "

The Court of Appeal in Dunford pointed out that even where there was a clear breach decide balance 58 S. the the whether or not all circumstances and of court must stiH there exists such an adverse effect upon the fairness of the proceedings that justice has legal be To to that to a right say a suspect advice excluded. requires the evidence 78 is denial lead' S. to therefore that under no should exclusion any wrongful and

denial have be is has that to such an adverseeffect on shown would argwnent - what be 78 S. invoked. fairness that the should proceedings the of following Rv Dunford in be Rv Alladice both the terms; However, and can criticized his for in issue, know is is the the this of rights abstract not no that a suspect may how in for legal to the those the on advice exercise rights context of compensation A-

-

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actual casethe suspectfaces. Moreover, one of the purposes of a legal advisor is to explain the legal meaning of knowledge intent dishonesty, such concepts as of this may wen or recklessness and affect what the suspect says or does not say to the police. Indeed, under the terms of S-34 of the 1994 Criminal Justice and Public Order Act the suspect faces a further difficult choice of giving information to the police about the offence or staying silent and risking adverse inferences being drawn at trial from that silence. Legal advice in the particular circumstances of the case is therefore made more crucial to the suspect by the introduction of S.34 of the 1994 Act. Indeed by S.58 (2) of the Youth Justice Evidence inference 34 be Criminal Act Section 1999 and under cannot an adverse drawn unless the suspect had been allowed an opportunity to consult a solicitor prior to being questioned at an authorised place of detention. Although access to legal advice was described in the following tenns in S.58 of PACE, "A person held in custody in a police station shall ... ... be entitled if he so requests to consult a solicitor privately " time... at any it was by no means inevitable that the judiciary should have taken so strict a line on the consequencesof breach of that provision. Indeed, the PACE Act is silent on what here be. by breach It is S. 58 that the consequencesof a recognition should argued of the judges that PACE represents a new settlement between police and suspect must deliberate breaches by S. 58 in have to the police. their of attitude played a part surely In this sense there is a parallel with judicial attitudes to breach of the recording breaches Where for interviews those the are substantial police station. at provisions follow. Rv is The Walsh (57) case exclusion almost as a matter of course will

breaches both had been in in in the there that that this case of context, significant had J. if Saville 58. In S. there that that commented case recording provisions and been significant and substantial breaches of S.58 or the provisions of the Code interviews, relating to the recording of " then prima facie at least the standardsof fairnessset ... by Parliamenthave not beenmet."

important following Walsh statement of principle was made, the In Rv

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"Although bad faith may make substantialor significant that does follow. be the not contrary which might not otherwise so, Breacheswhich are in themselvessignificant and substantial faith by the of the officers good are not renderedotherwise " concerned.

This is a significant comment given that under the old Judges'Rules the presenceor otherwise of good or bad faith seemsto have beenan irrelevant consideration. What the comment of Saville J. reveals is that the judiciary fully appreciate that PACE and the Codes represent a new settlement between police and suspect, and deliberate police breach of that settlement is likely to upset the "fairness of the proceedings" for the purposes of S.78. Inadvertent breach of that settlement is only likely to bring S.78 into operation if the breach is "significant and substantial". Breaches of the Codes of Practice which are made in good faith and which are not "significant and substantial" should not involve the exercise of the judge's discretion under S.78 to exclude relevant evidence from the trial. The "new settlement" is not so fragile as to require the exclusion of evidence solely becausethe police have breached

the Codes of Practice. As has been pointed out in various cases such as Rv OLoughlin (1987) (58) Rv Smurthwaite (1994) "fairness" under S.78 means "fairness" to the interests of the prosecution as well as of the defence. Exclusion of evidence solely because there was breach be interests Codes the to to the give sufficient weight a of would not of the Moreover, is S. 78 the test prosecution. under whether admission of the evidence "would have such an adverse effect on the fairness of the proceedings that the court fairness it"', This the the to not merely an effect on of proceedings. ought not admit before breach Codes dictate the threshold a of would suggests something of a exclusion of evidence.

Section 76 2(a) of PACE and its interpretation b-vthe courts It has to be acceptedthat some psychological pressureon somesuspectsis necessary fact in This is fully they to them when are guilty. point confess accepted to persuade by Gudjonsson, the forensic psychologist who aided the defence in 'Me Guildford Four and Birmingham Six appeals, (59)

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I think it is important to realise that unlessthere is believe kind that people of perceivedpressureor some that the police have somethingon them in the majority do believe I that a of casespeoplewould not confess... is in " essential police work. of pressure certain amount It may also be the case that some interrogative pressure is necessary even for those suspects who feel remorse for their offence and wish to confess to relieve their inner tension. Gudjonsson and Bownes in a research study into prisoners in Northern Ireland being held for sex or property offences, comment (60)

"... the more remorseful criminals are abouttheir offences the more likely they are to experiencean urge to confess. However, the sameblame attribution factors were associatedwith strong inhibitions about confessing. That is blaming the offence on internal mental factors (rather than on society) still leavesoffendersfeeling ashamed having in the about committed offence and order to by the overcome resistancecaused the shame,more interrogativepressureis required. Thesefindings have important implications for police interrogationtechniques. They indicate that suspectswho feel greatremorseabout their offence and thosewho blame the offence on internal factors like loss of temporary control, are going mental to be reluctant to confessto their offence, eventhough they have a great needto do so. The reasonfor this is in to they the probably related shame experience connectionwith the offence. In other words.,remorseful have feel done they suspectsalso most ashamedabout what from findings These inhibits this them and confessing. are interrogators. " consistentwith views of some experienced

Interestingly, the playing down of the seriousness of the offence is a very effective technique in inducing remorseful suspects to confess by offering them "face-saving" devices to confess. It will be remembered that in Rv Delaney (1988) the police were down-played Delaney have the the to offence which seriousness of was alleged did 71be Court Appeal indecent not approve of this technique assault. of suspected of, because of Delaney's mental age, which was that of a young child and ruled his 76 2(b) PACE. had been S. If Delaney inadmissible under of a suspect of confession have fallen foul his is it intelligence that then unlikely of confession would normal S.76 2(b). "Down-playing" the seriousness of the offence is a useful interrogative induce to their suspects overcome shame and confess to remorseful strategy have been in Delaney a very vulnerable suspect who may contrast, was truthfully. induced into a false confession by the police manipulation.

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However, as Gudjonsson and others have shown through research, the more psychological pressurethat is applied to suspects,especially vulnerable suspectsto induce them to confess the more likely it is that false confession will be produced. This means that there are cogent reliability based concerns for the police not to employ oppressiveinterrogative questioning for example. Yet there is a legitimacy issueindependentof this concernfor the reliability of confessions. At what point does the pressure applied to suspects to obtain a confession become "oppressive" so that the trial process should forego any confession obtained by those methods? Given that a finding of oppression under S.76 2(a) of PACE leads to the automatic its to unreliability exclusion of a confession without any consideration or argument as fall does it is important identify its to what police conduct or potential unreliability is 'oppression' If this the the threshold set exclusionary rule. of within operation of too low then there is a danger that too many guilty offenders will go free. To fmding leads to the automatic exclusion of a the of oppression point a emphasize confession without any argument as to the effect of the oppressive conduct on the has The Court Appeal the confession. of an reliability or potential reliability of important role to play in identifying these core prohibited practices for S.76 (8) of PACE is only a partial definition of what police conduct counts as "oppression" (see Rv Fulling (1987) (61)). Obviously there are limits to the precision of this identifying exercise by the Court of Appeal. Therefore Robert Reiner's plea for a clear statement on, 'I how much verbal abuse, how loud a voice, how many ... for the purposes repeated questions constitute oppression S. 76 2(a). " (62) of

is a completely unrealistic demand on the Court of Appeal. Mr. Justice Mitchell said in Rv Heron,

11 where the line is to be drawn betweenproper and ... interrogation oppressive can robust persistenceand in be identified " (63) tenns. general only Whilst some interrogative practices such as the use of threat of violence are always intensive in the society, use practices such of other as a civilized unacceptable depending be degree the or may not may on interrogative questioning oppressive of 174

Mtensity of questioning involved and the personality of the suspect. The degree of intensity is likely to depend on a number of factors, the length of questioning, the

amount of verbal abuse,the tone of voice, the nwnber of accusatoryquestionsand the personafity and age of the suspect. The decisions in Rv Emmerson (1991) (64) and Rv Miller (1993), the first decision holding that a "rude and discourteous" interrogation was not oppressive and the other holding that a very intensive interrogation was oppressive, illustrates that with regard to questioning it is all a matter of degree on whether the questioning is oppressive or not. The Court of Appeal in Rv Heaton (1993) (65) distinguished Rv Miller on the interview had in that the their ground although police officers voices slightly raised there was no shouting and the interview had only lasted 75 minutes. This is perfectly for it frustrate important tend to the aim of convicting the correct would seriously in forceful by if the through police guilty confession evidence a accusatory attitude interrogating a suspect was held to be in itself "oppressive". In parallel with the above point, the term violence in S.76 (8) must as Tapper notes "indicate more than a mere battery" since "' the requirement of so small a degree of force would be ... far disputes in too many perfectly reasonable to prone cause " (66) and acceptable situations. Again the threshold of oppression must not be set too low for then too many because for inadmissible be example, a ruled out as acceptable confessions would during his had hand questioning. put on a suspect'sshoulder police officer The next issue to be considered is to examine exactly why certain police practices are invites that their an automatic exclusionary rule to use considered so objectionable operate on any confession so produced. It is interesting that official reports which have considered the issue of police interrogation, for example the CLRC Eleventh Report and the RCCP Report, have in 'oppressive' denounce the very general terms without methods use of tended to T"he in its CLRC detailed account of why such methods are unacceptable. offering a following itself limited Report to the Eleventh comments,

"We do not think it would be right or acceptableto public opinion to make any exceptionto admissibility been " had (67) there oppression. where 175

The RCCP was slightly more expansive in its explanation of the prohibition on

violence and torture as interrogativemethods, "In order to mark the seriousness of any breach of the rule inhuman threat torture of violence, or prohibiting violence, degrading treatment and society's abhorrence of such or conduct, non-compliance with this prohibition should lead to the automatic exclusion of evidence so obtained." (68) These condemnations of 'oppressive' methods in securing confessions are cast in very do between terms the values that the general and not make any explicit connection trial process exists to uphold and denial of those values which occurs when the police for in torture to use violence or obtain evidence use the criminal trial. Recognition of this point would bring out clearly the important issue that the use of by in is torture the not only publicly violence or police obtaining evidence but is not consonant with the values which the criminal trial process unacceptable seeks to uphold. Therefore, even if public opinion were to change with regard to the acceptability of involved in (e. terrorist suspects a g. police violence against certain suspects determined and widespread campaign of violence against society, public opinion may by here) important the the the police point of principle use of violence well sanction force based its A to conviction on confession rule out such methods. would retain by be torture the through police would still violence or evidence obtained being a contradiction of the purposes of the trial process and verdict unacceptable as in a liberal democratic society. As Professor 1. H. Dennis has written, "At one level the verdict represents a conclusion that the factual demonstration has or has not been made out. But this is not the only messagethat the verdict carries. A verdict of guilty also conveys moral condemnation of the defendant. It is an expression of moral blame. At is level deeper the verdict additionally an expression a law the the criminal and of the consequences norms of of (69) breach of such norms -" of

fact it is important legitimacy theory the that to the To understand the verdict of grasp fact the than that a particular merely the crn=al trial and verdict communicates more defendant is guilty or innocent.

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Criminal trials perform valuable symbolic and educational functions which deterrence law importance the communicatemessagesabout the of and of the rule of criminality which are independentof truth finding. This perhaps slightly overstates the point since without a perceived general accuracy of verdict the criminal trial could not command the moral authority to communicate those "valuable symbolic and educational functions" but the main point is a valid one that the criminal trial has a significance beyond the conclusion that the defendant is guilty or innocent. Police impropriety in the investigative stage can diminish the integrity moral of the criminal trial which passesjudgement on a defendant on the basis of evidence gathered by the police. A good example is the case of torture to The Professor torture to to obtain a confession. use of obtain a confession, according Dennis, 11 amounts to a gross violation of the fundamental ... dignity. (70) " principle of according all citizens respect and Consequently, "A verdict derived from such a violation is self-contradictory. It cannot fulfil its integral functions of making a morally justified statement of the defendant's blameworthiness and fitness for pw-iishment and of conveying an expressive law incorporates it that the values which message criminal is necessary to uphold by punishment. " (7 1) be distinguished from arguanent of principle must clearly a separate bolster by to the argument used prohibition confessions on consequentialist obtained

This

torture or violence. As Dennis has written,

"Furthermore, to uphold a conviction in this case would ) loss in the of public risks of a confidence great carry integrity of the criminal process and of the criminal law itself. Ibe state should not therefore be able to by " (72) obtained such methods. evidence upon rely Appeals to the acceptability of certain methods of police interrogation with public favour be ban in argument a subsidiary of a on confessions opinion must surely only by torture or violence. obtained

The main argument against the use of violence or torture should be based on strong Home Office Royal that, the to the as namely memorandum moral considerations, 177

Commission on Criminal Justice in December 1992 stated, "Oppressive behaviour is offensive to the very values of Crfininal Justice." (73) Interestingly from 1973 the law in Northern Ireland rendered a confession to a scheduled terrorist offence inadmissible if obtained by subjecting the suspect "... to torture or to inhuman or degrading treatment in order to induce him to make it. " (Northern Ireland kEmergency Provisions) Act 1978, s.8(2 1))

This provision was introduced as a response to the excesses of some members of these security services and police in interrogating suspects in the fraught atmosphere of early 1970s in Northern Ireland. However, it was also designed to make more law it the test than confessions admissible under common voluntariness which replaced. With the abandonment of internment the obtaining of convictions upon became fight brutal in The the terrorism. confession evidence vital against interrogation of suspects in Northern Ireland in the 1970s attracted international International Report in 1978 Certain Amnesty the concern, see as an example. interrogation techniques of the security services led to major embarrassment for the British Government when the case of Ireland v UK (1978) (74) was decided against , Britain in the European Court of Human Rights. The Court held that Article 3 of the European Convention on Human Rights was breached due to the use by the security forces in Northern Ireland of five specific techniques of interrogation. These five techniques were, forcing suspects to stand right up to a wall for hours, being hooded for hours, subjection to persistent noise, deprivation of sleep and deprivation of food. The deprivation of sleep is especially likely to produce a highly suggestible state in has been It by in Peter Suedfeld hardened the suspects. commented of most even "Psychology and Torture" (75) that, it... of the methods enumerated, the sustained disruption by deprivation complete sleep or of sleep patterns - either by violently altering the accustomed diurnal cycle - has been singled out as leading not only to dread and disbelief in but internalized to eventually an orientation, false confessions. It has been called probably the most debilitating the elements of softening up potent of all " prisoners.

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The techniques of the UK security services were held by the European Court of Human Rights to amount to treatment that was inhuman and degrading but not to torture. The provision quoted above in Northern Ireland law was drawn from Article 3 of the European Convention of Human Rights. It was later incorporated into the Police and Criminal Evidence Act in England and Wales by S.76 (8) of PACE, as a partial definition of "oppression". Interrogation practices in England, although not generally of the brutality experienced by suspects in Northern Ireland in the 1970s, seem to have left a lot to be desired. A study into English practice by Walkley (76) in 1983 showed that over half the detectives he interviewed were prepared to use force or the threat of force when questioning suspects. 32% of those questioned were prepared to force. further detectives 34% A use of were prepared to countenance the use or threat force. The Walkley of study is quoted without objection in a recent paper by Tom Williamson, who is a Detective Chief Superintendent in the Metropolitan Police Service. Although Williamson (77) does stress that there has been a discernible move towards non oppressive interrogation techniques in the post PACE era, "the transition from coercive questioning practice is only just beginning". There is some evidence to heavy handed been have interrogation that to the a suggest approach of suspects may by C. I. D. detectives to those a somewhat encouraged culture which accorded status from a suspect quickly. who could secure a confession In his autobiography, Jack Slipper, a Detective Chief Superintendent in the Flying Squad in the 1970s recounts an interrogation of a woman who was "so nervous she I. in in C. D. Detective Chief literally the the office". vomiting wastebasket was Superintendent Slipper's account of his approach is interesting for the light it casts on C.I. D. culture at the time. (78)

"When a woman doesthat (vomiting) it's natural to be tempted to easeoff but in thosecircumstancesa good love, Well to never mind policeman cannotafford say, it in is It talk the still about again morning ... we will duty That's to carry on. what the ratepayerspay your have for I it in to to admit, pride comes and, also. you if you easeoff a suspectand a colleaguecomesin half full later hour confession,your own good and getsa an in You unstuck one come evening. may get name can be kinds of sympathyand your excusesmay accepted, all but in the bar in the Yard where all the police gossip is losing his 'Jack the that word soon goesout circulates it I grip ...

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This illustrates that legal changesto the recording of interrogations and the provision I. D. in C. by legal be important, culture of advice, whilst must accompanied a change detective has the to who can which often accorded social and professional status 'obtain' confessionsfrom suspectswithout a correspondingconcern for the reliability is The those that there much greater preof confessions. police now claim interrogation preparation so as to make sure that the interrogation proceeds on the basis of reliable information. John Smith (79) the Deputy Commissioner of the Metropolitan Police, commentsthat the quashingof the convictions of the Tottenham 71breecaused the police "a hell of a lot of anguish". As a result he claims the before is investigations "a emphasis now on minimal anyone was arrested with do bear Interestingly out this reliance on confession evidence". research studies from his in David interrogation. Dixon (80) to change police attitudes own research in has 1990 published commentedrecently, 11...crucially there has been a shift in evaluations of investigative methods: the tradition of arresting m hunches, interrogating and giving weak cases"a run" has been challenged by according status to officers before investigate arrest and who who more carefully find ways of working within the rules."

Given the importance of custodial interrogation of suspects to the aims of criminal justice and the danger that the police in seeking to fulfil those aims will overstep the has System Criminal Justice it is the that an unambiguous vital mark of propriety, it begin in to obtaining confession will not even statement on what police methods declaration function S. 76 2(a), is This the the of core prohibited a of countenance. interrogative practices that will not be tolerated by the system, irrespective of the issue. reliability Any inquiry by the judge under S.76 2(b) begins by asking whether the police "of the to tended any confession which the suspect may reliability affect methods used have made in consequence thereof'. With regard to "oppressive" tactics by the police, be by judge inquiry that the the this always will virtually the consequences of 76 2(b) is if S. inadmissible is applied correctly. confession ruled

be it threats tactics to However, with regard of violence, would such as violence or justice inconsistent the to treat the inappropriate and with values of criminal by to the as going reliability methods obtained such confession a of admissibility intention has S. 76 2(a) is Birch Professor As 2(b). 76 S. the of written, under question 180

to armotmcethat, it somebasic minimw-n standardsare not negotiable ... based on the and courtscannot entertainarguments in reliability of evidenceobtained an oppressiveway " (8 1) level descending the to the oppressor. of without

Thus S.76 (8) has a list of absolutely prohibited police practices which if used will bring in the operation of S.76 2(a) automatically. The question then becomes, since S.76 (8) is only a partial definition of "oppression" what other practices can constitute "oppression" for the purposes of S.76 2(a)? Rv Miller (1992) decided that aggressive interrogation questioning can constitute "oppression". The question then becomes depending in "oppression"' is this on the personality whether case a variable concept his lower level be intensity It the that of vulnerabilities. may a of suspect and argued for lady but for juvenile become "oppressive" not an a or an old of questioning may hardened experienced criminal. It could be argued that S.76 2(b) is available to cover those cases which require a detem-iination of the individual vulnerabilities of suspectsbefore a confession is ruled

inadmissible. Intensive questioning of certain vulnerable suspectscould be viewed as "somedling In likely R done" the to v, reliability of any confession made. affect which was said or Fulling (82) Lord Lane said that S.76 2(b) is. )

it... wide enough to cover some of the circumstances which by the what seemsto earlier rule were embraced under definition be the to of oppression artificially wide us " in Prager Rv (1972). approved Ibe common law concept of oppressive questioning was defined in Rv

Club, Bentham MacDermott's Lord to the as address approving by duration its nature, or other which questioning ... the the affects of so mind circumstances attendant ... he his that speakswhen otherwill crumbles and suspect have " he remained silent. would wise

As Dennis hasrecently observed,

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Prager

literally, this principle made questioning of taken ... impossible. " (83) in suspects police custody virtually

It might be argued that S.76 2(a) only covers those cases of intensive interrogative questioning which are clearly "oppressive" for all suspects. For confessions produced from less intensive questioning, but still intensive questioning, S.76 2(b) is available to deal with any problem, if it is felt given the vulnerabilities of a certain suspect that intensive questioning (as opposed to mere questioning) is likely to lead to an However, it is unreliable confession. proposed not to agree with this viewpoint. If the police engage in an intensive interrogation of a 12 year old boy or a mentally handicapped person, for example, it might well be the case that the interrogation is rightly stigmatized as "oppressive" whereas it would not necessarily be oppressive if the same interrogation was of an experienced career criminal. This was recognised by the common law concept of oppression, see Rv Hudson (1980) (84). If one of the for declare interrogation S. 76 2(a) is the to main reasons existence of certain police methods publicly unacceptable regardless of their actual impact on the reliability of S. 76 here) is invoked (contrast 2(b) S. 76 2(a) then where the properly confessions kind interrogative to the extremely vulnerable police subject members of society of be This for hardened the should questioning which reserved only of criminals. most is of course, not to advocate intensive interrogation for any suspect. Indeed all lesser degree It is in to merely to a or greater police custody. suspects are vulnerable recognise that certain suspects will not talk to the police unless some verbal pressure is placed upon them. However, where police interrogative questioning reaches a becomes for level intensity it "oppressive" all suspects, and any confession of certain be inadmissible 76 2(a). S. should ruled under made as a result Miller provides a good example of when interrogative questioning becomes "oppressive" regardless of the vulnerabilities of a particular suspect. However, in Rv NEller the Court of Appeal did make reference to the fact that Stephen Miller had a Rv

it 76 2(a) S. the vulnerabilities of a that so would appear under mental age of eleven factor is in deciding tactics used were one police whether suspect particular "oppressive". ?Me first major case on S.76 2(a) was Rv Fulling (1987). It was at the time PACE

definition law "oppression" the whether of question common was passed an open definition 76 (8) "oppression". S. The that represented of only a partial survived given flexible "oppression" It law of was concept. a relative and could concept common 182

take accotmt of the suspecespersonality and the effect of the interrogation on him. The test which the common law arrived at was first statedin Rv Priestley (1965) by Sachs J. Oppressive questioning was held to be,

"... that which tendsto sap and has sappedthat free wifl before is " must a confession volimtary. which exist

In Rv

Fulling, the Court of Appeal rejected the "artificially wide definition" of oppression approved of in such cases as Prager and Hudson. The court said that , PACE was a codifying act and that therefore the court should not reassert the old law on oppression. The Lord Chief Justice defined oppression by its "ordinary dictionary meaning". This was the, 11...exercise of authority or power in a burdensome, harsh or wrongful manner: mjust or cruel treatment of subjects, inferiors etc., the imposition of unreasonableor unjust burdens." Lord Lane continued, quoting from the Oxford English Dictionary, "There is not a word in our language which expresses detestable more wickedness than oppression." The emotional cruelty practiced by the police in this case, telling the suspect that in the police cell next to her was her boyfriend's lover, is probably insufficient to classify The in "oppressive" that as conduct. she confessed order to escape suspect claimed what was to her an intolerable situation of being in a cell next to her rival. The police have been in Rv Fulling it to truthful seems a one and whilst officer's statement was below in the the the threshold of tactless it was opinion of court, callous and "oppressive" conduct although others may reasonably disagree with this fmding. This illustrates a crucial feature about the concept of "oppression", namely that it is an has This that means concept. although oppression a core of essentially contestable is the can which everyone agree, e..g. use of serious violence settled meaning about in Ry Fulling be "oppressive", there such cases as pentunbral can reasonable clearly disagreement about whether conduct is oppressive or not. A. A. S. Zuckerman criticized the judgement in Rv Fulling as follows, "A perftmctory reference to a dictionary entry can hardly for the the conduct of police with guidelines provide interrogation. " (85)

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Ile referenceto "wickedness" doeshowever import a strong notion of 'bad faith' and it would have to be fairly extremepolice behaviour which could properly be described as "detestablewickedness". An example of police conduct not involving the use of violence or the threat of it nor the use of overly prolonged questioning which neverthelesswould be stigmatizedas "oppressive" is that mentioned in the 1986 case of Rv Miller (86), a casedecidedunder the old common law conceptof "oppression". The Court of Appeal commentedthat police questions deliberately asked with the intention of producing a disordered state of mind in a mentally ill suspect would amount to oppressionby the police. Watkins L. J. commentedthat "questionsskilfully deliberately disordered to and asked so as mind" was "such obviously produce a This wicked conduct". phrase echoes Lord Lane's definition of oppression as "detestablewickedness". Since Fulling, further clarification has been forthcoming from the Court of Appeal on what interrogation practices can be classified as "oppressive". In Rv Miller (1992) interrogative questioning of a very intensive be held "oppressive". to nature was In Rv Miller, also known as "The Cardiff Three" case (87) upon hearing the tapes of the interrogation of one of the suspects in that murder case the Lord Chief Justice had had behaved by forceful doubt "oppressively" that the no police repeated accusations by the police that the suspect was guilty in the face of the suspecfs repeated denials of disclosed by intensity However, the the the tapes of that case questioning guilt. of had denied involvement in the offence over 300 times the was extreme: suspect before he confessed to murder. It should not be assumed that forceful accusatory be is S. 76 "oppressive" 2(a). It to regarded as under per se was various questioning factors such as the duration of the questioning, the number of the same accusatory force delivery influenced the the the menace of which and questions as well as judgement of the Court of Appeal to quash the conviction. It is perfectly right that this level of intensity in questioning is classified as "oppressive". A person under arrest in police detention cannot simply walk away from the abuse and this is why, as Zuckerman points out, the use of verbal abuse in interrogation, police "

is offensive to our sense of justice. " (88) ...

for intensive interrogative to treat is This refusing all cases of a strong reason 76 2(b) S. S. 76 2(b) the to question although would no questioning as going solely by forms the to doubt operate more extreme of exclude confessions obtained

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interrogative questioning as unreliable or potentially unreliable; the more extreme forms of interrogative questioning are also offensive to our sense of decency and hence S.76 2(a) is the appropriate provision to be properly invoked so as to exclude any confession so obtained. It is to be hoped that the courts will pay even closer attention to the possibility of questioning becoming "oppressive" in the light of the change to the law affected by S.34 of the Criminal Justice and Public Order Act 1994.

Under the old law a suspect in the face of verbal insults or unduly repetitive by had free" "risk the the questioning police always option to remain silent, and his dignity. However, Act the the suspectwill the under provisions of new maintain be told at the outset of questioning that if he does not reveal certain facts then this longer is inferences Given be "risk trial. to that no at silence a could used ground free" option for the suspect it is likely that he will be more vulnerable to the distressingpsychological effects of verbal abusein the context of police interrogation. A suspect can, of course, still remain silent without fear of direct sanction but the less inferences indirect trial of a refuge at makessilence possible sanction of adverse for the suspect than it was previously. Any confession which results ftom this for have be it been by that carefully signs may obtained scrutinized scenario should due is It S. 34, that the this thesis to submission of pressure. undue psychological become lower has "oppressive" level to the potential at a of police questioning intensity than under the old law where silence was always a risk free option for the has S. 34 (89), Mirfield P. on commented suspect. "These provisions do seem to change the climate - as they were certainly intended to - such that in law the investigation is the suspect recruited as an active part of process." No longer can a passive silent attitude to police questioning be a 'risk free' option for his disposal is likely having Not the to experience this at option suspect the suspect. interrogation intensely before disagreeable than the more custodial even the effects of introduction of S-34. The possibility of interrogative questioning becoming be before is the than the should "oppressive" courts even more aware of something has been There by that introduction of the new provision. an argument canvassed from inferences in draw the that to a suspect's police silence station the court allowing improper interrogation. in An American decrease tactics on reliance police this will Berger, in a recent article on developments in England and Mark Professor academic

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the right to silence, comments(90) "It is arguable that permitting adverse inferences from silence feel incriminating to the secure pressure police now would remove benefit because they would also gain evidentiary admissions from a suspect'srefusal to answer Existing rules place police ... from to a criminal under great pressure secure statements fail do deprived If to they they so not only are suspect. of but potentially valuable evidence also they may not make use fact the that the suspect remained silent. The legislation of balance. law Under this the would change new a suspect's be to answers official questions can used as evidence against but so can his refusal to respond. Arguably this will lessen the likelihood that police will engage in improper tactics because they can secure some evidentiary benefit even if a suspect remains mute when questioned."

However, in criticism of this viewpoint it may be the case that the police will not decrease their use of improper tactics to obtain confessions since a confession if in has be drawn inferences than admissible evidence much greater weight which may from silence in the face of police questioning. The criminal court under S.34 is not draw inferences but do has The incentive to to obliged not may so. obtain confessions in the author's opinion been substantially lessened by the introduction of S.34 of the 1994 Act. Moreover, S.34 increases the risk of a false confession by placing more false The to pressure on suspects speak. vulnerable suspect may well make a admission under the increased coercive atmosphere of the new regime. Also there is the danger that at trial the jury may well draw a mistaken inference of guilt from in increasing justice. In the the silence police station, risk of a miscarriage of dangers innocent decreasing 34 increases S. the to than suspects rather conclusion them. In Rv Heron (1993) at Leeds Crown Court Mr. Justice Mitchell ruled inadmissible a horrific Listening to the tapes of the to the murder of a small girl. confession interrogation the judge held that (91)

I have no hesitation in concluding that there comesa time in that interview when the police beganto act oppressively." Ibe police had conducted, it an exercisein brealdng the defendant'sresolve to make ... " no admissions.

186

Various factors seemedto have influenced the judge in finding that the interrogation became "oppressive". The repetitive nature of allegations by the police that Mr. Heron had committed the murder in the face of his repeateddenialsrecalled the police tactics in Rv Miller "It was wrong in the teeth of his constant denials to pound him with consistent allegations of him being the killer and pound him with sexual allegations. " Mr. Heron denied the killing more than 120 times. The judge also criticized the police for misrepresenting evidence to Mr. Heron by falsely claiming they had two witnesses who had identified him at the place where the last Lies his in Rv Mason to victim was seen alive. a suspect and solicitor about led being incriminating to police possession of evidence a confession excluded under S.78. It might be thought from the Miller and Heron cases that the courts will not tolerate the traditional loud-mouthed heavy questioning approach of the pre PACE era. However, this is probably overstating the point. Police questioning in both the Miller in its intensity because line Heron the and and cases was extreme separating "oppressive" questioning from "non oppressive" questioning was clearly crossed in those cases it does not follow that shouting at suspects or making accusations to bring 76 2(a) into Indeed in S. Rv Emmerson (1991) play. suspects will necessarily (92) the C.A. held that where a police officer swore and spoke in a raised voice at times during an interrogation of a suspect who later confessed, this conduct although described as "impatient and rude" was not oppressive. According to Lloyd L. J. the police officer, 11 was saying in effect that it was plain that the appellant ... had committed the offence and why was he wasting their time. Tbe impression given is one of impatience and irritation. The judge found it rude and discourteous."

However, the judge also said on the voire dire

"... that to exclude this evidencewould be to give oppression false " 'completely meaning'. a

187

ýffie Court of Appeal said, it... we agree with the judge. In our view the evidence was rightly admitted. " Not all bullying interrogations deserve to be stigmatized as "oppressive" and if there is a problem with those interrogations not classed as "oppressive" then S-76 2(b) further test for admissibility in an appropriate case. provides a However, there is a line to hold against "oppressive" interrogation and the judges have here in using S.76 2(a) in emotive cases such as Heron where there must a vital role be a strong temptation on the police to use methods which begin to border on the "oppressive". Indeed,, attempts were made by some, including a senior police officer, after the Heron case to justify the tactics used in that case. This prompted the Lord Chief Justice to comment extra judicially in November 1993 (93), "T'hat when judges exclude confessions obtained in breach of the 1984 Act by oppressive interviewing, attempts are made in some quarters - not all - to justify the conduct of the interviews and to criticise the judges. " Some police officers seem to view S.76 2(a) as a fetter on their legitimate action; detective have Heron Northumbria Chief is Superintendent to the reported after case a local had been down by Criminal Justice "let System". that the the community said On the point of oppressive questioning he said, "It would be entirely wrong to be pussyfooting about for have If the to truth. we search we a responsibility behaviour it talking occurs every about oppressive are day in the courts, not just in the police station." (94)

The elementary criticism on this comment is the difference between a crossinterrogation for in in the purpose of private examination open court and a police The different, two therefore are contexts significantly and confession. a obtaining different has from import in totally the police station a oppressive questioning judge has intimidatory in trial the to the where power stop questioning Opencourt, by his T'he in judge is the counsel. of proceedings witnesses master questioning of own court.

188

After the release of the Cardiff Three the Chief Constable of South Wales police

for, called " full debate questioning. a on what constitutes oppressive (95) One interesting feature of the Heron and Miller cases was the existence of a taped in Miller interrogation The Court Appeal the the record of case was of process. shocked by the menace of the delivery as well as the number of repetitive questions be interrogations It taped that the asked. rather than may evidence of existence of has interrogation in PACE issue the the reliance on police accounts of made as pre era of "oppressive" questioning a live one in criminal trials. 'Ibe old common law for deficient because lack concept of oppression was as a protection suspects of a of independent leading interrogation the the an account of conduct of up to a confession. The courts tended to rely on police versions of events with all their potential for bias doctoring interrogation. PACE, The the the simply and of record of police could, pre deny the 'oppressive' behaviour alleged, and the police would often have been believed by judges, juries and magistrates. Also it may be that the experience of listening to tapes of interrogation has made the judiciary more vigilant to the possibility of oppression in questioning. The Lord Chief Justice, Lord Taylor was clearly 'horrified' by listening to the interrogations of Stephen Miller. The much increased visibility of the interrogation process in England, post PACE, from due in important the the protection of suspects process value of may result "oppressive questioning" being realised in many cases. The police know that in formal interviews at least, bullying tactics are likely to be detected by the courts, through the tape recording requirements of the Codes of Practice; a similar point is in They in Accused". "Standing by McConville that the pre comment et al made PACE era, "Records of interrogation as unilateral police products, depicted the police asking polite questions of suspects favours from to tried the police secure whilst suspects for in bail. Of by their offering an admission return as nature therefore they anticipated possible objections to in questionable practices and were constructed such a interrogations the that reported conformed to any way demands that could be legitimately made of the police. "

189

However, in the post PACE era, the police are required to tape record interrogations, "This significant change in the rules of accounting is beginning to draw the judiciary into examining the nature of "interviews" " lines (96) the of questioning. and propriety of certain

It is not possible to ascertain with any certainty how frequently violence or the threat of it was employed in the pre PACE era to obtain confessions. The facts of Treadaway v Chief Constable of West Midlands (1994) (97) disclose police behaviour towards a suspect in interrogation in 1982 which in the words of Mr. Justice McKinnon "amounted to nothing less than torture". Substantial damageswere he West Midland The that awarded against police. signed the plaintiff alleged he been handcuffed back, had behind his and a succession of confession only after head behind his been his bunched bags had the placed over up neck plastic with ends fourth bag him After the to plastic was causing struggle and pass out at one point. held over his head he signed the confession. There is an important caveat to the proposition that oppressive interrogation methods because be detected by in PACE likely the the to than of the courts pre era are more tape recording requirements. This caveat is that since most suspects who following interrogation make confessions plead guilty, then the nature of those interrogations be by It be the that some police officers will criminal courts. may will not scrutinized be tempted still to use oppressive methods in the hope that those methods will never be examined by the courts because of a guilty plea made by the defendant following his confession. Section 76 2(a) as a rule of admissibility can only operate to protect defendants from has It limitations is trial. there serious as a a contested coerced confessions where because from defendants for of the great number of coerced confessions all protection guilty pleas. A case has thankfully yet to be reported in England since the introduction of the PACE regime where the police have actually used or threatened violence to obtain a Burut Public Prosecutor Privy Council (98) (1995) but case v a recent confession from Brunei illustrates that in some common law jurisdictions the use of violence or inhuman treatment to obtain confessions is a continuing problem of some magnitude. by firearms being involved the In Burut the accused were suspected police of with "a in in Brunei to special procedure" carried out offences and as such were subject

190

cases invo ving suspected firearms offences. The procedure involved interrogating suspects whilst they were manacled and hooded. Lord Steyn giving the opinion of the Privy Council held that this conduct was "oppressive" under Brunei law which had adopted the common law concept of "voluntariness" as a bar on the admissibility of confessions. The interest of the case is in the interpretation given the phrase //confession obtained by oppression". The trial judge and the Court of Appeal of Brunei held the confessions of the accused admissible despite the use of the "special procedure" prior to the making of the confessions. The reasoning was that the confessions were made at interviews with the police when the special procedure had been not used, the special procedure had been used at earlier interviews with the few days suspects a earlier. Lord Steyn criticized this reasoning of the Brunei courts,

it although the appellants' written statementshad not ... been obtained during interviews in which they were had between to treatment, subjected such nothing occurred their interrogation in accordance with the special procedure dispel the the to the implied threat and making of statements further interrogation be of at which such procedure would applied to them. " Consequently the confessions were obtained by oppression and were hence inadmissible. The convictions were quashed. There is another issue with regard to confessions obtained by oppression. This is where the police use oppression to obtain a confession and then at subsequent interviews behave in complete accord with PACE and the Codes of Practice and fact further has been by It that the the that an courts obtain confessions. asserted does has been inadmissible not necessarily mean that earlier confession ruled for, is likely be important issue inadmissible. Ibis to an subsequent confessions are Heydon (99) notes as "There can be no doubt that an accused who makes one likely " is to others. make confession Once one confession is made the psychological and practical disadvantages of having been incurred, have this and so makes subsequent confessions already confessed easier to make.

191

At common law the inadmissibility of an earlier confession as involuntary did not be if it later could shown preclude the possibility of the admissibility of a confession that any inducement had dissipated in its effect on the defendant when he made his later is be it the that confession subsequent confession and that therefore said can law leading is Rv Smith (1959) (100) the voluntary: see case on common which successive confessions and their admissibility. As stated in Rv Glaves (101) and Rv Wood there is no general rule that the inadmissibility of the original confession "must inevitably be a continuing blight upon for be The Crown any subsequent confessions". might able, example, to persuade the had inducement that the court not continued with regard to the subsequentconfessions although the original confession was ruled inadmissible because made as a result of '17hisis in line with the approach taken at common law where be if involuntary improper to the an one could confessions subsequent admitted inducement had become ineffective due to some interviewing cause such as lapse of

inducement. an

However, where the original confession is ruled inadmissible because of be in its the then obtaining, courts should careful about allowing the oppression further by the use of admissibility of subsequent confessions which were obtained time.

be Public in Burut Prosecutor It that the use of oppression at the v as oppression. may behave later interviews the taints the where police with whole series of outset fear It The threats. the a return of violence or suspect may greatly complete propriety. is submitted that once oppression is used to obtain a confession then unless be ruled circumstances are very unusual, all subsequent confessions should inadmissible under S.76 2(a) even if those subsequent confessions were made at interviews where the police complied perfectly with the Codes of Practice.

Undercover methods and the lep-itimacy of confessions so obtained It is proposed to complete this analysis of the question of the legitimacy of confession has focusing by the since enactment of which arisen a new problem on evidence PACE: what should the response of the courts be to attempts by the police to secure "undercover by from the methods" which are not use of a suspect a confession legislative by that regime? controlled It may be tempting for the police to use such methods especially after an attempt to failed had failed has it formal interview Codes in in the as under confession a secure

192

the Hall case. The suspectwould be "off guard" in such a situation, not aware he is dealing with the police and also he will not have the benefit of legal advice on the possibly incriminating nature of his replies. There is some evidence to suggestthat the rigours of PACE on the detentionand interrogation of suspectsand the control of accessto a suspect by the "custody officer" has led to an increase of autonomous C.I. D. activity away from the police station (on this seeD. Hobbs in his book "Doing the Business") (102). This activity may involve questioningof suspectswithout the constraintsof the Codesof Practice. It is therefore important that the courts attempt to fill in the gaps left by PACE and the Code on undercover methods to obtain confessions. The protections for suspects by be by 1984 Act the the expedient of engaging provided could easily circumvented in such operations. It would be unsatisfactory that measuresto strengthen due process for protections suspects in the police station resulted in an increase of undercover attempts to secure confessions from suspects outside the police station. There must be a temptation for some police officers to avoid the rigours, of PACE and the Codes in formal interviews by attempting to question suspects unhampered by the rigours of the statutory regime. Such undercover methods to secure confessions must be clearly distinguished from fore have in Ibus to the other undercover methods which recent years. come attempts to entrap suspects to commit further offences or tactics designed to provide incriminating evidence about the commission of an offence which do not involve from be distinguished the situation under questioning about an offence must involvement to their consideration, which concerns attempts question suspects about in offences uninhibited by the requirements of the Codes of Practice. In Christou and Wright (C. A. ) a -police trap designed to secure evidence of the form jewellery in 'shady' the shop under the control of the of a commission of crimes held be legitimate 'accepted' to a operation and stolen goods was police which have been In to the transactions the trial. was said rightly admitted at evidence of Taylor in Lord involved judgement (103) that the emphasized police were not giving involvement in criminal offences. their the questioning of suspects about

"The appellants were not being questioned by police officers There terms. would acting as such, conversation was on equal be no question of pressure or intimidation by the police officers believed in be We to authority so. actually or persons as learned judge the that the Code simply was not agreed with intended to apply in such a context. "

193

However, Lord Taylor administered the following caution to the police, a caution which played a significant part in the decisions of the judges in the later cases of Rv Bryce and Rv Hall. Lord Taylor commented.in Clristoipý

"It would be wrong for police officers to adopt or use an undercover pose or disguise to enable themselves to ask by the requirements questions about an offence uninhibited it. Were Code the the of effect of circumventing and with they to do so, it would be open to the judges to exclude the questions and answers under S.78 of the 1984 Act. " (104)

The questions asked by the police in Christ 11...were for the most part simply those necessary to conduct the bartering and maintain their cover. They were not " the questions about offence.

Such a situation cautioned against by Lord Taylor arose in the case of Rv Bryce (105). In that case an undercover police officer had contacted the appellant by telephone and agreed to buy a car which had býen stolen shortly before. They had to the the arranged meet and at meeting at a market police officer a conversation by including the the officer with appellant a query as to whether the car was stolen. The appellant said it was and he was arrested. The Court of Appeal held that the questioning was,

" blatantly an interrogation with the effect if not the ... design of using an undercoverpose to circwnvent the Code." As such, under the Codes of Practice, a caution should have been given and the been his have legal The to notified of right advice. confession should suspect should have been excluded under the S.78 discretion. This principle was confirmed by the Court of Appeal in Rv Lin. Hung, and Tsu (1995) (106) where it was emphasized

that, "... in a casewhere a judge concludedthat the use of undercover in officers was purely order to get round the requirementsof the Code that would be a strong reasonfor holding the evidence inadmissible."

194

In Rv PaH Lord Justice GlideweU commented, "In our view the absenceof a caution in most circumstances is bound to be significant for the purposes of the exercise S. 78. " (107) of In Rv

Hall an admission by the defendant to murdering his wife was ruled inadmissible on the voir dire under S.78 and in the alternative S.76 2(b) of PACE. The suspect had been interrogated formally on a number of occasions but had in remained silent all of those interrogations. The police established an elaborate by become to charade which an undercover policewoman pretended emotionally involved with the suspect. The purpose behind the charade was to try to use the involvement lever by the suspect's emotional with undercover policewoman as a be his involvement in the talk the to which suspect could persuaded about possible disappearance of his wife. Arguably this police tactic was likely to render unreliable have Hall any confession made, as might said anything including a confession to keep Moreover, to the the murder relationship with undercover policewoman going. he was denied the protection of PACE and the Codes of Practice by not being in in the to right cautioned nor offered see a solicitor what was effect a series of police from designed incriminating Hall his in the to questions elicit self answers about role disappearanceof his wife. The operation used in Rv Hall was similar to that used in Rv Stag (108) where another undercover policewoman offered sexual and emotional involvement with the suspect in exchange for information concerning the suspect's denounced in Ognall J. involvement the the possible murder of a young woman. in Stagg as, police operation 11 a blatant attempt to incriminate a suspect by positive and ... deceptive conduct of the grossest kind. " This is in line with dicta in Rv Sang that attempt to unfairly induce a suspect to incriminate himself is a basis for excluding evidence in the discretion of the trial judge. Lord Diplock commented in Rv Saul that a discretion existed to exclude, it evidence tantamount to a self-incriminatory admission ... from had defendant the the after offence which was obtained been committed by means which would justify a judge in had like the selfexcluding an actual confession which incriminating effect. "

important in Rv Stagg illustrate J. Ognall that this clearly The comments of principle

195

for the discretionary exclusion of unfairly obtained evidencehas survived the passage of S.78 of PACE and indeed is a basis for excluding evidenceunder that provision. Ognall J. commented,

"It seemsto me that there can be no difference in principle betweenon the one hand evidenceof fantasiesexpressedby a suspectsaid to go to the issueof identity or on the other hand evidence,for exampleof fingerprints or a blood sample. It is not the natureof the material obtainedthat matters.,it is the purposefor which the prosecutionseekto use it. 'Ibus Lord Scarmanspoke of an accusedbeing tricked into when providing evidencethat would plainly in my judgement include evidenceof this character... I am quite satisfied that the evidenceobtainedin this undercoveroperationfalls directly within the classof material of which disapproval in was expressedalbeit obiter Rv Sang,-"

Ognall J. cmcluded, "Although the court's powers at common law are preserved by Police Criminal Evidence 82(3) Act the sub-section of and in the context of the facts of this particular case it does not have I is in the matter whether conclusion arrived at seen the light of the principles relating to self-incrimination at common law or under the statutory discretion invested in me by sectioti, 78 of the Act: on either basis I am satisfied that the conduct fair demands trial the exclusion of the evidence obtained of a in this fashion. " However, Rv Hall is the stronger case because a confession was made in that case inadaiissible in Rv Stagg the evidence solely consisted of prosecution whereas disposition by Stagg to the to any offence without admission comnlit evidence of involvement in the offence. Mr. Justice Waterhouse held that.,

"It is clear that throughout thoselater relevant conversations the undercoverofficer has engagedin continuousquestioning be defendant the the conversationcould steered whenever of direction in that about the circumstancesof the approximately death or disappearanceof his wife. Tbat was a questioningof' having committed the a personwho was still suspectedof " murder. offence of

Denial of the requirements of the Codes of Practice led the judge to hold the 196

S.76 2(b) was obviously applicable as well confession inadmissible under S.78. given that the undercover policewoman promised the suspect emotional commitment if he revealed that he had killed his wife. A more manipulative inducement is hard to imagine, threatening the reliability of any confession made as a result of it. What is permissible as a tactic to obtain a confession from a suspect who has remained silent in formal interview is to 'bug' the suspect's conversations with others. Whether this extends to the bugging of a suspect's conversations with his solicitor is obviously a different matter. Legal advice is unlikely to be "unfettered" (see Rv Mason if solicitor or client suspect the police are bugging their confidential held However, in Rv Bailey Smith (109) rightly conversations. and a confession was bug his in the admitted after a was placed suspect's police cell and conversations with listened 'Me Court held Appeal to. that the police were under no an associate were of duty to protect suspects from having the opportunity to speak incriminatingly to each do from bugging if There they to the to a so. was nothing chose police other prohibit had be made even after an accused person cell where self-incrindnating speech might been charged and had exercised his right to silence in interview with the police. The distinction with Bryce is that no questioning by the police took place. If suspects in incriminating in to talk to each other an way a police station then the are so careless for be taking advantage of that. police cannot censured Counsel for the defence in Bailey sought to argue that deceitful conduct of the kind by in Bailey the police practised "... drives a coach and horses through the Code to the point future in bother interview to the not police will even where suspects." The Court of Appeal rightly rejected this argument. The strategem. employed in Baile could manifestly not be used with any frequency, to nothing would be more obviously self-defeating: it ... be in " (110) grave cases. used only should

However, what would tend to subvert the protections of the Codesof Practicewas the Idnd of undercoveractivity manifested in casessuch as Bryce and Hall. If the police by interviewing in Codes the the they rigours of that could avoid suspects thought incriminating for trial then then the produce remarksat potential undercover guise and

197

undercutting PACE and the Codeswould be substantial. The decisionsin Bryce and Hall, are to be welcomed. Ibey are another sign of the seriousnessof the courts in attempting to ensure that the "new settlement" on the thorny problem of achieving fairness in the interrogation of suspectsestablishedby PACE is respectedby the police. (111) These are also indicative of a new judicial scepticism towards police accountsof contestedinvestigative eventsand a greaterwillingness to exclude police evidencethan in the pre PACE era: seeChapter 1.

198

Footnotes to C haDter 5 The Leffit'

acy of Confessions

(1)

Rv Mason [ 198713 AR ER 48 1.

(2)

D. Galligan "More Scepticism about Scepticism" (1988) 8 Oxford Journal of Legal Studies, p.249 at p.256.

(3)

See for example 1. H. Dennis "Miscarriages of Justice and the Law of Confessions: Evidentiary Issues and Solutions" [19931 Public Law at p.297.

(4)

RCCJ Report (1993) paragraph 50, p.61.

(5)

ibid, paragraph 33, p.57.

(6)

ibid, paragraph 3 1.

(7)

CLRC 1Ith Report (1972), paragraph 63, page 42.

(8)

H. Packer, "The Limits of the Criminal Sanction" 1968. p. 189.

(9)

W. Twining L. P. E. Twining, Torture" "Bentharn (1973) Vol. 24, see and on Northern Ireland Legal Quarterly, p. 305.

(10)

ibid at p. 326.

(11)

CLRC Eleventh Report (1972) paragraph 14.

(12)

CLRC Eleventh Report (1972) General Principles, paragraphs 14-17.

(13)

RCCP (198 1) Chapter 4, Paragraph 4.132. ibid, paragraph 4.132.

(15)

ibid, paragraph 4.133.

ibid. (17)

Rv Alladice (1988) 87 Cr. App. R. 380 at p. 386.

(18)

Rv Samuel (1988) 2 All ER 135 at p. 147. Rv Samuel was followed by the four for Crown Leeds Court in Paul Guest judge the trial trial murder at of held judge Guest's judgement in Rv Samuel. The that trial the weeks after because inadmissible his in the to part murder of a policeman was confession denied him legal his interrogation. This had the police wrongfully advice at interrogation Guest the though police of occurred almost a year was so even before the appeal of Samuel was heard. Guest was acquitted because the further M. For discussion had this case see of no other evidence. prosecution Hunter "Judicial discretion: Section 78 in Practice" [1994] Criminal Law Review, p. 558 at p. 564. As Dixon remarks for operational officers "the significant influence was not Samuel but its application in Guest . an unreported case in which a confession leading defendants to the to the murder of a police officer was excluded, in Policing" "Law 170-171 1997. of acquittal", pp. 199

(19)

For an argument that there should be a statutory tort of wrongful denial of legal advice see A. Sanders"Rights., Remediesand PACE" [19881 Criminal Law Review, 802.

(20)

R. A Dworkin "Taking Rights Seriously" 1977 at p. 193.

(21)

A. Ashworth, "Excluding Evidence as Protecting Rights" [19771 Criminal Law Review 723 at p. 725.

(22)

ibid.

(23)

Rv Walsh (1990) 91 Cr. App. R. 161 atp. 163.

(24)

A Ashworth "The Criminal Process" 1995 at pp.302-303.

(25)

ibid.

(26)

Rv Smurthwaite [1994] 1 All ER 898 at p.903.

(27)

Rv Fennelley [ 1989] Criminal Law Review, p. 142.

(28)

1. H. Dennis "Reconstructing the Law of Criminal Evidence" [1989] Vol. 42 Current Legal Problems, p.21 at p.39.

(29)

ibid at p. 37.

(30)

ibid at p. 38. H. Packer "The Limits of the Criminal Sanction" at p.4.

(32)

ibid at p. 165.

(33)

RCCP (1982) at para. 48 1.

(34)

On the value that persons attach to infonned participation in the legal system, People Obey Law" T. Tyler "Why 1990. the see

(35)

Rv Mason [ 1987] 3 All ER 481 at p.484.

(36)

ibid at p.485.

(37)

Rv Bailey and Smith [1995] 3 All ER 513. On the issue of deception by the be "Should Police Ashworth's A. the article allowed to use police see Deceptive Practices" (1998) Vol. 114. Law Quarterly Review at p. 108.

(38)

Rv Stagg. 14th September 1994. Unreported. Central Criminal Court (Ognall J.).

(39)

D. Birch "Excluding Evidence from Entrapment: What is a Fair Cop?" [19941 Vol. 47, Current Legal Problems, p. 96 note 74.

(40)

Rv Khan [ 199414 AH ER 426.

(41)

Rv Tumer (1975) 61 Cr. App. R. 67.

(42)

RCCP (198 1) at paragraphs 4.92 and 4.13 3.

200

(43)

Rv Prager[ 1971] 1 All ER 1114 at p. 1118.

(44)

Rv Aflen (1977) Crim L. R. 163. Norwich Crown Court.

(45)

Rv Trickett (198 1) Crim. L. R. 331. Central Criminal Court.

(46)

Rv Marsh (1985) Crim. L. R. 47. Central Criminal Court. In Rv Allen MacKenna J. commented, "... if the police are allowed to use in court evidence which they have obtained from suspects to whom they have wrongly denied the right of legal advice they will be encouraged to continue this illegal practice complaints against the police of their refusing prisoners' ... access to a solicitor are numerous. If there is substance in them as I believe there often is, the exercise of the court's discretion in the manner I am it do exercising may something to put an end to an undesirable practice".

(47)

Rv Elliott [ 1977] Crim. L. R. 55 1. Rv Lemsatef [1977] 2 All ER 835 C.A.

(48)

Rv Sang [ 197912 All ER 1222 at p. 1236.

(49)

Rv Stephen King [1980] Crim. L. R. 551.

(50)

The case of Peter Fell quoted at p. 7 of the "JUSTICE" Report "Unreliable Evidence? Confessions and the safety of Convictions".

(51)

M. Zander "Ibe Police and Criminal Evidence Act 1984" 2nd edition at p. 115.

(52)

R. Reiner, L. Leigh "Police Power" in "Individual Rights and the Law in Britain" 1994, edited by McCrudden and Chambers at p. 100.

(53)

Rv Williams [1989] Crim. L. R. 66.

(54)

For the research figures see R. Reiner, L. Leigh "Police Power" in "Individual Rights and the Law in Britain" edited by McCrudden and Chambers at pp. 104105. However, it should be remembered that it may sometimes be in the interests of the police to allow suspects to have access to legal advice for as for the police a significant benefit of suspects' receiving Dixon comments " ... legal advice is that often they are advised to confess or are presented with a set is of options of which confession clearly the most attractive. In a criminal feature fundamental important is its police process whose single most dependence on the guilty plea the best advice is often to make an early for implicating in to co-offenders confession and cooperate other ways such as in D. Dixon, in "Law Policing" 1997 sentencing". at which courts give credit 242. p.

(55)

R. J. Sharpe "The Law of Habeas Corpus" 1989, Second Edition at p. 133: "The Police and Criminal Evidence Act 1984 does accord an arrested person the right to contact and be advised personally by a solicitor, but there is an it is submitted unacceptable, exception which permits the enormous, and for hours deny in this to thirty-six the case of a serious to up right police " arrestable offence.

(56)

Rv Dunford (1990) 91 Cr. App. R. 150.

(57)

Rv Walsh (1990) 91 CrApp. R. 161 atp. 163.

(58)

Rv O'Loughlin [1987] Crim. L. R. 672 C.A.

201

(59)

G. Gudjonsson, "The Psychology of False Confessions" (1989) Vol. 57-58 Medico-Legal Journal 93, at p. 98.

(60)

G. Gudjonsson and 1. Bownes "The Reasons why Suspects Confess during Custodial Interrogation: data from Northern Ireland" (1992) Vol. 32, Medicine, Science and the Law, p.204.

(61)

Rv Fulling [1987] 1 AHER65.

(62)

R. Reiner "Investigative Powers and Safeguards from Suspects" [1993] Criminal Law Review, p. 808 at p. 812.

(63)

Rv Heron. Unreported Leeds Crown Court. 18th October 1993. (Mitchell J.)

(64)

Rv Emmersm (1991) 92 Cr. App. R. 284.

(65)

Rv Heaton [1993] Crim. L. R. 593. C.A.

(66)

Cross on Evidence. Seventh Edition 1990. p. 615.

(67)

CLRC Eleventh Report, paragraph 60.

(68)

RCCP (198 1) Paragraph 4.131

(69)

1. H. Dennis "Reconstructing the Law of Criminal Evidence" [1989] Vol. 42 Current Legal Problems, p.21 at p. 36.

(70)

ibid at p. 37. ibid.

(72)

1. H. Dennis "Instrumental Protection, Human Right or Functional Necessity? Reassessingthe Privilege against Self-incrimination" [1995] Cambridge Law Journal, p. 342 at p.353.

(73)

Home Office Memoranda to the Royal Commission on Criminal Justice. December 1992, paragraph 3.119.

(74)

Ireland v United Kingdom f 197812 EHRR 25.

(75)

P. Suedfeld "Psychology and Torture" 1990 at p. 10.

(76)

J. Walldey "Police Interrogation: A Study of the Psychology, 71heory and Practice of Police Interrogation and the Implications for Police Traftfing" by Current Tom in in Police Practice" Williamson "Reflections on quoted "Suspicion and Silence: 71he Right to Silence in Criminal Investigations" G. Stephenson, by Morgan 107 109-110. D. at pp. and p. edited

(77)

ibid at p. 109.

(78)

J. Slipper "Slipper of the Yard" 1981 at p. 94.

(79)

John Smith, Deputy Commissioner of the Metropolitan Police, quoted in David Rose "A Climate of Fear: The Murder of P.C. Blakelock and the case of Ibree". Tottenham the

202

(80)

D. Dixon "New Left Pessimism", in "Contemporary Issues in Criminology" edited by Noakes, Leviý Maguire, 1995 at p-219.

(81)

D. Birch "The PACE Hots Up " [19891 Criminal Law Review, p.91 at ... pp. 100-101.

(82)

Rv Fulling [1987] 2 All ER65.

(83)

1. H. Dennis [19961 Ile Sydney Law Review, 33 at p.39.

(84)

Rv Hudson (1981) 72 Cr. App. R. 163 at p. 169.

(85)

A. A. S. Zuckennan "The Principles of Criminal Evidence" 1989 at p. 333.

(86)

RvMiHerf1986]3AJlER119atp.

(87)

Rv Paris, AbduHabi and MiUer (1993) 97 Cr. App. R. 99.

(88)

A. A. S. Zuckernian "The Principles of Criminal Evidence" 1989 at p. 303.

(89)

P. Mirfield "Two Side-Effects of ss.34-37 of the Criminal Justice and Public Order Act 1994" [1995] Criminal Law Review, p.616 at p. 617.

(90)

M. Berger "Of Policy, Politics and Parliament. The Legislative Rewriting of the British Right to Silence" (1994-5) The American Journal of Criminal Law, Vol. 22, p. 391 at p.425.

(9 1)

Rv Heron. 'Ihe Times 22nd November 1993.

(92)

Rv Emmerson (1991) 97 Cr. App. R. 284 at p.287.

(93)

C.J. Commenting on the Heron case in The Times 27th Lord Taylor November 1993 at p.2: "Lord Taylor insists oppressive interrogation must cease//.

(94)

The Daily Telegraph 27 November 1993 and quoted by Sanders and Young "Criminal Justice" 1994 at p. 169.

(95)

Quoted in The Guardian 17 December 1993 and quoted by Sanders and Young "Criminal Justice" at p. 169.

(96)

McConville et al "Standing Accused" 1994 at p. 115.

(97)

Treadaway v Chief Constable of West Nfidlands. Ihe Times Law Reports 1994 at p.523.

(98)

Burut v Public Prosecutor [1995] 2 A. C. 579.71here is a case for arguing that if a suspect is denied an important due process protection before a confession is made then not only that confession but aU subsequent confessions should be in if inadmissible those subsequent even confessions were obtained ruled interviews conducted with perfect procedural propriety. The point is that the have if the the obtained subsequent original not confessions might police been he has little lose had the to that made, suspect reasoning not confession by repeating his confession. If the criminal courts in England are concerned from fairness PACE the a continuum pre-trial ensuring of with post investigative phase to the criminal trial then it is arguable that where a by PACE important is of violation of provisions such as confession obtained section 58 then alI subsequent confessions should be excluded under section

203

127.

78 of PACE to ensure the "fairness of the proceedings". This line of reasoning help to explain why the second confession in Rv McGovern was held by may the Court of Appeal to have been inadmissible despite the presence at the interview of the suspect's solicitor. The Court of Appeal noted that once she had made her first confession (when legal advice was wrongly denied her) then it was likely that she would make a second confessiorL Farquharson L. J. commented, "We are of the view that the earlier breaches of the Act and Codes renders the contents of the second interview inadmissible If first interview was in breach of Section 58 it seems to us that the the also. subsequentinterview must be similarly tainted". (99)

J. D. Heydon. "Evidence: Cases and Materials"' Second Edition 1984, pp. 181182. For an important discussion of the issue of successive confessions see P. Mirfield "Successive Confessions and the Poisoned Tree" [1996] Criminal Law Review, p.554.

(100) RvSrnith[195912AIIER193. (101) Rv Glaves (1993) Crim. L. R. 685 C.A. Rv Wood (1994) Crim. L. R. 222 C.A. See further on this point Rv Gillard and Barrett (1991) 92 Cr.App. R. 61 where Taylor L. J. commented, "... there can be no universal rule that whenever the Code has been breached in one or more interviews,, all subsequent interviews must be tainted and should therefore be excluded by the trial judge. Such a fetter the judge's discretion under Section 78." rule would Also see the comments of Otton L. J. in Rv Nelson and Rose [1998] 2 Cr.App. R. 398 at p.409. (102) D. Hobbs "Doing the Business: Entrepreneurship, Detectives and the Working in East End the class of London", Clarendon 1988 at p.226. (103) Lord Taylor C. J. inRv Christou [199214 AIIER559

566. atp.

(104) ibid at p.566. (105) Rv Bryce [1992] 4 AIIER567

572, C. A. at

(106) Rv Lin, Hung and Tsu [1995] Criminal Law Review 817 at p.818. (107) Rv PaU (1992) 156 J.P. 424. (108) Rv Stagg 14th September 1994. Central Criminal Court (Ognall J.) Transcript judge in the the possession of the author of this thesis. the trial ruling of of Also the unreported ruling of Waterhouse J. in Rv Hall 1994 in the possession of the author of this thesis. (109) Rv Bailey [1993] 2 All ER 513. See also Rv Aliý The Times February 19th 1991, where a self incriminatory conversation between the suspect and his family was held admissible despite the fact that it had been obtained by the in in the the police station where the room police planting a secret microphone family knowledge held the the nor suspect that without of conversation was decision bugged. Court The Appeal the the room was of of the trial upheld judge to admit the evidence. (110)

Rv Bailey [1993] 2 All ER513 at p.523.

204

(111) For further examples of police traps to secure incriminating conversations from suspects see Rv Jelen and Katz (1989) 90 Cr.App. R. 456 and RvH [1987] Criminal Law Review 47 (Winchester Crown Court). In RvKa first instance decision, the defendant had been arrested and interviewed for the offence of rape. He claimed that the alleged victim had from The he then released police authority. police then set consented and was him between by telephone trap taped conversation a and the organising a lied be' during that the complainant which she conversation was not g held be judge inadmissible as an unfair The the trial to recorded. conversation trap under Section 78 of PACE. In Rv Jelen and Katz, the police had between tape-recorded the appellant and a co-accused arranged a conversation during which the appellant made various self-incriminatory statements after the co-accused had lied that he had said nothing to the police. It was held in dismissing the appeal that although there was undoubtedly a trap involved in the police tactics the appellant was still anxious to meet and to speak to the codistinguished in The by Court Appeal Rv RvH that of accused. emphasizing Jelen and Katz the police were at an early stage of their enquiries and the been had interviewed, in nor not cautioned contrast to the situation appellant fact defendant in RvH. The the that the trap was employed at an early of before inquiry Practice Codes the the the of police stage at which stage of been decisive factor have in Court Appeal the of relevant was a would decision in Rv Jelen and Katz. In response to an argument that the police had Codes in Code C the the to the of co-accused order avoid requirements of used Code Practice., " the the the the provisions governing court said: of of ... detention, treatment and questioning of persons by police officers are there for the protection of those who are vulnerable because they are in the custody of the police. They are not intended to confine police investigation of a crime to be investigation. " to those regarded as sporting under conduct which might (1989) 90 Cr. App. R. 456 at p.464.

205

CHAPTER 'REFORM OF THE LAW

6 OF CONFESSIONS

The Issue False confessions have been a primary cause of many of the miscarriages of justice cases which have traumatized the criminal justice system in England since 1989. It is therefore not surprising that the law of confessions should have attracted attention from those who wish to avoid similar miscarriages of justice cases in the future. Sir John May in his Report of the Inquiry into the convictions arising out of the Guildford Woolwich bomb and attacks commented, (1) I think that the next important lessons which can be drawn from the case of the Guildford Four derive from the fact they were convicted solely on the evidence of their own confessions. Ibere was no other evidence against them. Further., these confessions were mutually inconsistent in important Four the respects and retracted many each of their admissions before or at trial. They contended that the confessions were in no way voluntary and that each had been induced by oppression. This they said comprised assaults, threats of violence against members of their fan-lilies. Y; Ifflst being questioned at excessive length they had been deprived of sleep, food and drink. "

May commented that "at this length of time I am in no position to make findings on these questions". At the very least the Guildford Four case propelled the issue of false based on confession evidence to the centre of public attention. convictions However, it is important that genuine weU informed concern is distinguished from in Unfortunately some academic writings on the subject of comment overreaction. false confessions tend towards overreaction. Greer has written, (2) "Enough is now known about the nature of police interviews, the psychology of those in custody and the for in it to role of confession evidence contested cases be presurned inherently unreliable unless its credibility is rehabilitated by strict tests."

One of those tests according to Greer is the proposal that, 206

"No confession ought to be admitted in evidence unless there is independent evidence capable of supporting its contents."

The problem with this analysis is that by overstressing the dangers of false confessions it proposes reforms which may frustrate one of the fundamental aims of the criminal justice system, namely the conviction of offenders. Of course, advocates of serious reform to the law of confessions would assert that the protection of the innocent from conviction may require measureswhich would inhibit the conviction of for further defendants. However, is that there some guilty given a great social cost legal hurdles against the admissibility of confessions it is vital that the law strikes an balance between innocent the the acceptable protection of and the conviction of the balanced false A the perspective of guilty. risks of confessions and the current legislative and common law regime against them is needed before an assessmentof law be to the various reform proposals of confessions can made. Moreover, it has to be acknowledged that the old assumption that a suspect, in the in falsely be impropiiety, the sustained confess cannot would not absence of police light of modem psychological research. As the RCCJ Report acknowledged, (3) "T'he legal system has always allowed in evidence statements that are made against the interests of the maker in the belief that individuals will not make false statements against themselves. This belief can no longer be sustained. Research has conclusively demonstrated that under certain circumstances individuals may confess to crimes they have not committed do it is likely in interviews that that they more will and in conducted police custody even when proper safeguards " apply.

An example of the common law attitude to the value of confession evidence is the old judges it in (1791) (4) Lambe Rv twelve that the was of where stated opinion case of

confessions,

it... are at common law admissible in evidence as the highest and most satisfactory proof of guilt, because it is fairly presumed that no man would make such a himself if facts the confessed were confession against " true. not

207

Yet the RCCP also endorsed the principle that, (5) "Where a suspect has made a confession it must normally ... constitute a persuasive indication of guilt and it must in principle be desirable that if a not guilty plea is entered in spite of it, the jury are given the opportunity of assessing its probative value for themselves." It must generally be the case that in the absenceof undue police pressure a person of normal intelligence and maturity would not confess to a crime he did not commit. That there are and have been exceptions to this general statement does not justify wholescale scepticism about the probative worth of confessions. As the Court of Appeal recently commented in Rv Ward, (6) "In our experience casesin which it is accepted that a but confession was made and was made voluntarily nevertheless it is assertedthat the confession was wholly is in This the untrue, are rare extreme. of course such a // case. There are particular risks of unreliability associated with juveniles, the mentally ill and the mentally handicapped but not only are there special statutory and common law duties on a judge in dealing with such cases it also cannot be assumed that a by is inherently Uglow's S. such a person unreliable. confession made comment in in practice reliance on confessions is very "Criminal Justice" (1995) (7) " that ... dangerous" is a misleading overreaction to the miscarriage of justice cases. In the has Gudjonsson (8) written, context of retracted confession "It is true that a number of people retract their confessions and possibly the majority of these are doing it because they do not want to be convicted for did that they commit. " an offence Even with regard to retracted confessions then it cannot be assumed that this type of is systematically unreliable, although certain categories of retracted evidence be 76 2(b) Section PACE those of may challenged under confessions such as in Legitimate the concem about role of confessions systematically unreliable. lead danger to the the an overestimation of of not should wrongful convictions if has the confession unreliability of confessions as a class of evidence, especially been obtained in compliance with the terms of the Police and Criminal Evidence Act designed is legislative This Practice. Codes The to reduce the 1984 and a structure of hampering in the whilst not unduly police obtaining risks of an unreliable confession

208

a confession from the suspect. Moreover, an unduly cautious approach to confessions and their general probative worth by commentators which influences the media may have the undesirable effect of influencing juries to reject reliable confessions and allow guilty offenders to be As has been noted before, overreaction to the dangers of confession evidence may lead to reform proposals which are too stringent and which will run the

acquitted.

risk of allowing too many guilty offenders to escape conviction. As has been recognised by commentators, confessions as evidence are vital to various proof issues in many serious cases. Evidence of 'intention' or 'recklessness' may in certain cases be by Bodkin Adams Devlin As the trial, only provided a confession. notes of "... there was no hope of a conviction unless the police could obtain admissions." (9a)

Confessions may be the only realistic source of proof in certain serious cases; proof be dependent in of child sexual abuse may some cases on a perpetrator confession given the difficulties associated with the testimony of very young children. A recent have led Court Appeal to the that case where of commented only a confession could The Rv Payne (9b). (1994) the serious case of appellant, a care conviction was for buggery in home handicapped worker at a physically adults, admitted of a patient the home, who was severely handicapped and who had great difficulty in had J. The judge Rougier trial commented at trial, communicating. I very much doubt whether the matter could have been had if chosen to continue to proved against you you lie innocence." In the Court of Appeal, McCowan L. J. commented on the confession,

"The casecould not have beenbrought without his " admissionsand co-operation.

It is therefore odd to find G. Robertson Q. C. commenting in "Freedom, The Individual and The Law", that, a strict rule against conviction on the strength of an find to uncorroborated confession would require police if independent which the evidence will always exist a is " (9c) true. confession

209

Independent evidence might not always exist as Rv Payne shows.

The Reform Proposals

The starting point of the discussion on PACE is that it is generafly recognised that it has decreased the possibility of miscarriages of justice based on false confessions. Thus, rules on recording of confessions, access to legal advice and their stringent by the judiciary have had the result that the interrogation process has enforcement been opened up to public scrutiny. The old problem of 'verballing' is now one which has been eliminated in formal interviews by the requirement of tape-recording it although remains a problem with regard to informal confessions. One of the major PACE aims of was to reduce the likelihood of false confessions emerging from the interrogation process and S.76 and S.78 have been vigorously employed by the judges to work to that end. Reference should also be made to S.77 of PACE which places a duty on the trial judge to tell the jury of the 'special need for caution' ( see Rv Campbell (1994) (10) on the importance of this duty) where the prosecution case rests wholly or substantially on a confession made by a mentally handicapped person and in that where confession was not made the presence of an independent person. In Rv Bailey (1994) (11) the Court of Appeal quashed a conviction for manslaughter failed had judge the trial to give the warning and arson and ordered a retrial where from by 77 handicap; S. the the since appellant suffered required a significant mental in independent to the the police not confession was made presence of an adult and the depended substantially on the confession. However, there is no prosecution case be 77 limited handicapped S. to the should mentally only. good reason why It also has to be accepted that miscarriages of justice casesbased on false confessions have occurred since the introduction of PACE. However, in one of the most notorious cases,R v Miller (1992) (12) the Lord Chief Justice was careful to stress that the miscarriage of justice was due to a combination inherent due defects itself. PACE to human the any regime of errors and not of

210

"Before parting with this casewe should commenton the apparentfailure of the provisions in the Police and Criminal EvidenceAct 1984to prevent evidenceobtainedby oppressionand impropriety from being admitted. In our judgement, the circumstancesof this casedo not indicate flaws in thoseprovisions. They do indicate a combination human of error." These hinnan errors included the oppressive behaviour of the police, the passivity of the solicitor present and the fact that the worst example of the police excesseswas not played to the trial judge. However, the PACE structure has been criticized by some conunentators for failing to do enough against the admission of false confessions. Although S.76 2(a) and its interpretation by the courts has been criticized by some commentators for not being specific enough on what police conduct counts as "oppression", it is S.76 2(b) and its interpretation in cases such as Rv Goldenberg and Rv Crampton which has come under a greater amount of criticism. Professor Jackson has critically commented on S.76 2(b) and the Royal Commission on Criminal Justice Report, "A thorough review of the admissibility test, however, might have prompted the Commission to consider whether the trial judge should himself be satisfied that the confession is before it. " (13) reliable admitting

It is important to stress that the section was never intended to cover all possible cases in Instead S. 76 isolates 2(b) of unreliability confessions. a particular recurrent threat to the reliability of confessions, namely "anything said or done" by the interrogator which affects the reliability of confessions. As Parliamentary debates reported in Hansard make clear, S.76 2(b) was never intended to cover cases such as Rv Stewart (1972) where the threat to confession in defect lay in the any undue police pressure or within suspect and not a reliability Lord Elystan Morgan and Lord Deming in the House of Lords both 76 2(b). (14) important the this of section scope about point made impropriety.

Tbe Lord Chancellor, Lord Hailsham made clear in the debatesin the House of Lords background be 76 2(b) S. Bill, the the PACE that understood of must against the on fact law, issues law to the and of evidence of traditional approachof

211

" (the clause) is an attempt to modify two principles of ... law which, in one form or another have been part of the law is in for England to that criminal say of centuries the ordinary course of events questions of fact are for the jury and questions of law for the judge. But when we are dealing with confessions there is one important exception. Ilere is a class of confession -a class containing two sub-clauses - where the judge becomes a judge of fact. He has to decide on what is called the dire beyond have the voir prosecution proved - whether doubt that the confession was not obtained reasonable by in effect either unlawful pressuresor unlawful inducements But it is an extremely exceptional case ... because it is not desirable to take away from juries the decide facts. Nor is it desirable to the to give right judges the right to decide the facts. It is normally the function of the jury - and ought to be so - to find the facts and to say in relation to evidence which is logically first believe it they probative whether at all and secondly how far they regard it as reliable, relevant or carrying fact. That is duty the tribunal weight. part of of a of Clause 77 of the Bill seeks to codify and slightly remodel field has been law in England this the what of always of " (15) evidence.

The question then becomes whether English law should be altered so as to impose be duty judge it is to the the that a assess reliability of a and satisfied upon confession This is in Jackson has before it to trial. the what essence proposed. reliable admitting (As has Professor Choo (16)) although Choo admits the proposal would upset "traditionalists" i. e. those who view the jury as the proper assessorsof the reliability be in English Such ) a major one criminal evidence, making a step would of evidence. the admissibility issue a question of fact for the first time - is the confession true or by 76 'Me S. 2(b) Rather the test. than the or old voluntariness question posed not? inherently faced be then unreliable as a class of question must - are confessions so judge for identification the that to, evidence, should preexample, evidence compared jury deliberation the that the the the rule on ground out a confession of and empt judge is not satisfied as to its reliability?

The ability of the jury to assessthe probative worth of evidence accurately has been fact" Lords RvH in (1995) "similar House by the the case of of recently reaffirmed (17). As Lord Griffiths said,

"Tbe basic reasonwhy criminal casesare heardby juries by judge is than alone that our society prefersto a rather trust the collective judgement of twelve men and women drawn from different backgroundsto decidethe facts of 212

a case rather than accept the view of a single professional judge. Deciding the facts requires the jury in all casesto decide whose evidence they find credible and what inferences they are prepared to draw from the facts as they find. I would therefore resist any attempt to remove this essential role from the jury for to do so seemsto be to strike root and branch at the very reason we have jury trials. " (18)

A rule requiring the judge to be satisfied as to the reliability of a confession before admitting it would be a radical departure for the law and contrary to the general for jury is that the the and not the principle assessment of credibility of evidence judge.

Other forms of evidence such as identification evidence, the evidence of infon-ners is be that not accomplices and may also potentially unreliable yet justify by judge be to the considered a rule which should satisfied of the reliability of

the evidence before admitting it to the trial. Where there is a possibility of reasonable disagreement about the reliability of a impediment it towards the an confession would seem unduly protective accused and to important aims of the criminal justice system to require the judge to be satisfied himself as to the reliability of a confession before admitting it. A reference was made form inherently is to unreliable of evidence which earlier accomplice evidence as a be Accomplice testimony. capable of giving reliable although some accomplices may is Accomplice to rule. evidence non-nally goes evidence not subject any exclusionary before the jury subject to no mandatory corroboration requirement and indeed after S.32 of The Criminal Justice and Public Order Act 1994 subject to no corroboration be if, having It would anomalous abolished the corroboration warning warning either. for accomplice evidence, Parliament introduced a corroboration rule for confession different been leave has law The types of the treatment the to trend of of evidence. for discretion judge, the the to confessions of a corroboration rule unreliable evidence be (19) this trend. against would

Of course, where a confession is on its face very unconvincing the judges should have being discretion have do than the to more prejudicial evidence as exclude a and in Rv Stewart (1972) discretion This to although was recognised exclude probative. by Rv judge. In described "very facts the trial the as exceptional" the case were of Isequilla (1974) (20) the Lord Chief Justice said,

213

"If one of the reasons for excluding confessionsis the dangerthat they may be untrustworthy, it would be in accordancewith principle to exclude a confessionmade by someonewhosemental statewas such as to render his utterancescompletely unreliable. It is however difficult to formulate a governing principle and it is possiblethat, in England the matter will be treatedas one of judicial discretion." The Lord Chief Justice went on to say that the mental state of the appellant at the time fact he the to than the that was sobbing and of confession which amounted no more frightened, did not come anywhere near the class for the exercise of the discretion. Yet,

"Of coursein an extremecasewhere a man is a mental defective it would be no doubt absolutelyright to rule out being " his wholly unreliable. evidenceof confessionas

Tbe trial judge in Rv Kilner (1976) (2 1) excluded a confession made by a mentally ill In Rv Davies Rv Isequilla. (1979) the a confession was suspect on authority of discretion in judge's trial the on the grounds that the confession was excluded heavily the that the under confession while suspect made probably unreliable given the influence of a drug. (22) In Rv Powell (1979) (23) also a first instance decision, discretion the probative value/prejudicial effect a confession was excluded under because of the poor mental state of the suspect when he made his confession. However in Rv Miller (1986) (24) the Court of Appeal approved the decision of the in irrational by defendant judge to trial whilst an state of a admit a confession made beset delusions i. interrogation, during the with and suspect was e. when mind police hallucinations because the judge held that the jury were capable of distinguishing between apparently rational and irrational parts of the defendanfs so called confession to they the safely rely and on could act confession part or parts of which and selecting illustrates This defendant. that the the prejudicial effect/probative value case convict discretion to exclude a confession will only be used in an extreme case of potential by for a example where multiple confessions unreliabi-lity of the confession, as large degree. Rv In inconsistencies defendant to a show mutual mentally unstable Effik and Mitchell (25) the Court of Appeal did not differ from the opinion of the trial judge that if it had been found that the defendant made his confessions whilst have his judge from then trial the would used severe withdrawal symptoms suffering from had judge The trial the discretion to exclude evidence. commented, confession

214

"If I were to fmd that he was suffering from thoseacute I interview then the time the withdrawal symptomsat of make it quite plain that I would have exercisedmy discretion to exclude evidenceof the interviews."

It has been suggestedby commentatorsthat the confessionin the Rv Ward casewas an example of where the judicial discretion to exclude should have been exercised. As Professor Dennis has written, "Had the full story of Ward's numerous statements to the been inconsistencies inaccuracies, their police with and his judge trial, revealed at one wonders whether any worth salt would have let the confessions go to the jury. They might well have been excluded on the voir dire on the grounds that no probative value could safely be attached to them and that they were capable of causing great prejudice particularly given the horrific nature of the offences charged." (26)

It is implicit in the above comment of Dennis that he accepts that where there is the disagreement possibility of reasonable about the reliability of a confession it should be admitted to the jury for consideration assuming that the confession is not inadmissible under S.76 2(a) or S.76 2(b) of PACE and that the confession's have fairness "does the not such adverse admission an effect on of the proceedings that it ought to be excluded" under S.78 of PACE. However, the mentally ill and juveniles also ought to receive special treatment with be S. 77 PACE therefore to their confessions and should regard of amended The RCCJ (1993) (27) supported this reform, see paragraph 40 of that accordingly. Report. It is important to point out that where the police are interviewing a mentally handicapped or mentally ill person or a juvenile then they should only do so when there is an "appropriate adult" present. Paragraph 11.14 Code C states, "A juvenile or a person who is mentally disordered or mentally handicapped, whether suspectedor not, must not be interviewed in to written statement the absenceof or asked provide or sign a the appropriate adult unless paragraph 11.1 applies."

If the police fail to comply with this provision then a confession runs the risk of being PACE. Tbe is "appropriate 76 2(b) S. there to of requirement adult" under excluded

into is giving unreliable ensurethat the especially vulnerable suspect not manipulated be he that information and also can given guidanceon what the police are saying to 215

him. Caseswhere S.76 2(b) has been usedto exclude a confessionbecauseof breach of the "appropriate adult" requirement include Rv Everett (1988) (28), Rv Moss (1990). Rv Cox (1991), Rv Glaves (1993): in this last case the confession was excluded even though a solicitor though not the "appropriate adult" was present; under the Code Ca solicitor cannotperform as 'an appropriateadult'. Failure of the police to comply with the "appropriate adult" requirement is likely to lead to the exclusion of a confession under S.76 2(b). However, this is not inevitable and so S.77 provides a ftn-ther level of protection at trial in the case of the mentally handicapped confessor. In addition to the common law discretion to exclude a confession whose prejudicial effect outweighs its probative worth there is also the duty imposed by Rv Mackenzie (1992) (29) on trial judges to withdraw a case from the jury where: (a) (b)

the prosecution case depended wholly on confessions, the defendant suffered from a significant degree of mental handicap, and

(c)

the confessions were unconvincing to the point where a jury properly directed would not properly convict upon them.

Then the trial judge should in the interests of justice take the initiative and withdraw the case from the jury. S.76 and S.78 of PACE do not cover all possible cases of false for The PACE does in 76 confessions. regime confessions section not cover the situation where the unreliability of the confession is due to a factor inherent in the suspect. However, section 78 and the common law discretion and the common law duty imposed by Mackenzie would seem to be sufficient for those cases where there is a danger of miscarriage of justice due to a false confession by a mentally disordered individual. handicapped or mentally Those commentators who advocate stricter controls on the admissibility of confession form in the of a corroboration requirement or a requirement that a evidence for in legal be be has the to presence of a made advisor can also criticized confession hampering unduly the conviction of the guilty on confession evidence. Public failing been justice has to the the system convict criminal guilty concerns about beginning in intense the the concern expressed at recent years as of the almost as false has Reiner (30) 1990s about wrongful convictions on noted confessions, as a be is likely increase to to public anxiety about corroborated rule requiring confessions from justice to them the system protect criminals. criminal the ability of

216

The crucial and obvious difference between measuressuch as judicial warnings on confession evidence and more rules regulating the admissibility of confession evidence is that the latter will have the effect of removing some confessionsfrom the considerationof the jury. Pattendenconcludedin her study of the corroboration issue,as follows, "A solution is neededwhich will reducepublic concernabout wrongful convictions without simultaneouslyallowing the patently guilty to go free ..." (3 1)

Pattenden favours a judicial warning to juries on the dangers of confession evidence. Various reforms which are aimed at improving the ability of juries to correctly assess be 'Me the confession evidence should on relaxation of the rules on whole welcomed. from the to those with a with regard expert evidence reliability of confession evidence disorder in decision Court in Rv Appeal the the manifest of of severe personality Ward (32) is one such measure. Moreover, if more expert evidence on the interrogation in is into trial then trial vulnerabilities of particular suspects allowed be identify to those potentially very unreliable confessions more able judges will be discretion in judge's trial to exclude evidence which is the excluded which should The increased defence than the to cross more prejudicial probative. ability of his evidence of an alleged examine a police officer on previous cases where in has led Rv Edwards is likewise be (33) to to established an acquittal, confession be f(ii) S. Consideration 1 Criminal to the also given refon-n of of should welcomed. Evidence Act 1898 which tends to inhibit those defendants with previous convictions from challenging confession evidence where that challenge involves imputations on the character of police officers. For a challenge to the integrity of the police by the defendant in the witness box will most probably lead to the disclosure of his has Robertson Q. C. f(ii) Geoffrey before S. 1 the that the written court. convictions frequent defendants is the the of causes wrongful conviction with most of rule one of (34) previous convictions. John Sprack (35) in the context of confessions, succinctly sw-ns up the problems of

f(ii), S. 1 the operation of 01 one difficulty in rooting out false confessions is that there ... is a powerful disincentive to prevent the accusedfrom have fabricated the the confession or that officers alleging behaved in any seriously improper way. This disincentive is known as the 'tit for tat' rule Hence where they have a ... 217

suspect with previous convictions the police can attribute a false confession knowing that they are in a strong position.

It would appear that Winston Silcott was deterred in the Blakelock murder trial from challenging police evidence by going into the witness box becauseof the operation of the S. 1 f(ii) rule. Silcott had a previous conviction for murder and his Q.C. Barbara Mills believed that there would be a great risk that the jury would learn that he was already a murderer if Silcott challenged the authenticity of his alleged confession to the police in the witness box. (36) This danger has been reduced since the introduction of a tape recording requirement for an indictable offence. It would be virtually impossible now to fabricate a formal in for interviews have However,, it in confession admitted evidence. and informal interviews there is no tape recording equipment. 'Me potential for 'verbalhng' remains and hence so does the inhibitory effect of Section 1 f(ii) on the in defence that the confession allegedly made successfully mounting a accused 'informally' or 'spontaneously' was in fact never made at all. Section 1 f(ii) win also defendant if brutality, for before he the alleges police operate example, made a be It Sprack if justice that the may well confession. as concludes, criminal system for be 'tit to then the tat' rule should really wants expose police malpractice abolished defence in to where order mount an effective an accused wishes to challenge police The Royal Commission Criminal Justice (37) proposed a confession evidence. on in line CLRC, this the the of rule with reform partial reform proposal of " this rule should not apply where the judge is satisfied ... imputations, by defendant the that made against the defence. " to the are central prosecution evidence

However, all these measures are concerned with improving the ability of the trier of fact to correctly assessthe weight of confession evidence. A clear distinction should be made between these reforms and those reforms to the law of confessions which hurdles One ftu-ther to the admissibility of confession evidence. possible would erect is be before it is to taped confession this all to evidence requiring a rule exception is It that the trial. unsatisfactory to and alongside authentication anomalous admitted formal interviews in for there should exist a parallel system confessions procedures for the admissibility of non recorded confession in informal interviews. This reform it fully behind the defended the that the be more realises purposes ground on can issue for 'verballing' to the once and PACE reforms, one of which was eliminate all. 218

However, a corroboration requirement or a rule requiring all confessions to be made in front of a legal advisor can be criticized for reopening the settlement between police and suspect that PACE represents. The PACE Act was debated long and hard in Parliament and the entire context of police powers and interrogation was considered not solely the corroboration of confessions issue. It would be wrong to legislate on the corroboration issue without considering the wider picture of police powers and interrogation. The rules relating to the admissibility of confessions, S.76 discretion the to exclude S.78 were part of that political settlement between the and rights of suspects and the interests of the police and the community. It was therefore it PACE PACE if the that tests, the time accepted at a confession, satisfied was passed was in itself admissible evidence of guilt. This reflects the old common law position that English law allows a conviction to be based on nothing more than an unequivocal Rv Wheeling (38) Rv Sullivan (1887) (39). (Indeed, (1789) confession - see a and in is to the absence of corpus confession potentially enough ensure conviction even deficti of the crime - see Porter v Court (1962) (40) where there was no evidence from had been The Divisional Court the that apart confession a crime committed. by The ) the statutory the upheld suspect was given enhanced protection conviction. lead have in for interrogations in PACE the the taken enforcing courts scheme and this aspect of PACE. However, one of the assumptions around which PACE was built was that a confession obtained in the absence of legal advice (as opposed to the by in itself legal being the to admissible evidence of police) was offered right advice This in the position reflects the community guilt, even absence of corroboration. interest in facilitating the conviction of guilty offenders on the evidence of their PACE is important It to that to not only seeks to note unequivocal confessions crime. from it the trial also seeks to protect the confessions, unreliable process protect admissibility of a reliable non oppressively obtained confession as evidence of guilt. (4 1) PACE legitimated detention for questioning for up to thirty-six hours on police hours to on the authorization of a magistrate. ninety-six authorization and up Assuming the police comply fully with PACE, any confession obtained during that for be It be likely detention is to will not usually possible an admissible. period of few beyond hours detention in be that a a police station prolonged made argument to is inherently 'oppressive' and that therefore any confession made in that period is inadmissible under S.76 2(a). For PACE to be internally consistent S.76 2(a) cannot be invoked against confessions obtained from a suspect who has been held in police hours long have the for police so as complied thirV-six. or even ninety-six custody In PACE in this PACE way and not engaged unfair or oppressive questioning. with the general admissibility safeguards Rv Arguments the interrogation. of

219

of confessions obtained through police Hudson (1980) (42) type that prolonged

detention and questioning is inherently oppressive are therefore disarmed. The Principles which govern the admissibility of confessions reflect the Janus faced position of protecting defendantsfrom wrongful conviction on unreliable confessions but also serve the community interest in the general admissibility of confessions obtained through police interrogation as proof of guilt. In considering admissibility for standards confessions then it is wise to consider not only what types of confessionsare inadmissible under the regime but also what types of confessionsare admissibleunder that regime. Confessionlaw is often influenced not only by a desire to protect the trial from certain kinds of confessions but also to guarantee the admissibility of other confessions. The voluntariness rule at common law was abandonedpartly becausetoo many reliable confessionswere being excludedbecause of inducementsmadeprior to their making, which mild inducementsoften had no real Law Criminal (on the the the this effect on reliability of confessionmade point - see Revision Committee Eleventh Report at page 37, paragraph57). The attitude the observerhas to interrogation, confessionsand their value to the criminal processwill thereforehave normative consequencesin terms of the confessionevidencestandards interrogation lead hostile A to stricter criteria of to pre-trial may attitude adopted. interrogation the than value of police would. admissibility a positive view of One of the debated topics in Parliament during the PACE BiH was the corroboration issue for confessions but this was rejected as a measure even for especially vulnerable handicapped. Of 34 Criminal Justice S. the the of mentally course suspects such as be in balance It Public Order Act these terms the upsets can criticized as well. and between suspect and police established by PACE by giving the police even more The in to to the police station to right silence pressure exert upon a suspect confess. by RCCP (198 1) the the and was accepted as a part of package proposed was part of the political settlement between police and suspects that was achieved in the PACE Act after long consultation and political debate. The response to S.34 should not be to advocate any stricter controls on the balance between the police and suspects admissibility of confession evidence, rather S. 34. Of if is by be this the of not politically repeal course re-established should feasible then alternative strategies to restore the balance between police and suspect legal be the rule requiring a advisor perhaps presence of a and considered should into be is before a confession admitted evidence would an appropriate response to the by S. 34. (43) Ihe significance of the 1998 increased pressures placed on suspects Dennis be in (44), Act this Rights notes Human as overlooked context; should not

220

11

1- -

from inferences provisions Lae permitting silence, adverse ... particularly pre-trial silence in the face of police questioning, likely to be tested at an early stage under Article 6 of the are Convention. "

The corroboration

reguirement in Scotland

The Royal Commission on Criminal Justice consideredin its Report whe&er there should be introduced into English law a corroboration requirement for confessions found in Scottish law. It is not proposedto rehearseall the arguments to that similar for and against the various corroboration requirementsproposedas theseuguments, be found in the RCCJ Report itself at pp.62-68 and in "ConfessionEvidence" by can D. Wolchover and A. Heaton Armstrong at pp. 23-33. (45) Howeve2r,some be observationswill made on the corroboration requirementas it presently stands in Scotland. The corroboration requirement for confessional evidence in Scotland flows frum the general rule of evidence there that the guilt of the accused cannot be established by the evidence of only one witness. 'Ibere must be evidence from two sources to justify follows It that in theory an accused who has made a confession, to the a conviction. police cannot be convicted on evidence of the confession alone; however as will be law does for Scottish the conviction of a person on his confessim alone. seen, allow In Gilmour v H. M. A. (1982) (46) the High Court in Scotland stated that where the freely in its little is terms then made and unequivocal very confession corroboration is required. Indeed, the confession itself may provide sufficient corroboration if it knowledge" Wilson A Murray H. Advoeats,.. "special J 1987) see and v contains The "special knowledge" confession is one where the confession (:ontains facts have known had he the to not maker could reasonably which about references However, law has in Scottish limited involved been the this crime. not not (47).

is known Wilson "knowledge" The that to publicly not see above. requirement in Scotland the requirement corroboration as a protection against current efficacy of be doubted. Even justice 'special that the a rule must which stated of miscarriage knowledge" evinced in the confession was only known to the police would be a for Royal Commission Criminal Justice dangerous the as on one potentially be knowledge to passed can suspects, whether wittingly or commented, special interview. If (48) by the the conducting officers a corroboration unwittingly, be imported law from into English Scotland it for to then was confessions requirement it imperative that clear that a confession can only provide is statute makes

221

corroboration from itself when it contains "special knowledge" of the crime that is not in the public domain and also is not known to the police at the time the confession was made. (49) Moreover, given that in Scottish law where the confession is itself unequivocal little is required by way of corroboration, then this cannot be considered to be a situation providing a panacea for dealing with false confessions. As Mirfield points out, " the confession may be entirely unequivocal, may have ... been obtained without any unfair treatment of the accused be and yet wholly unreliable, whether becausea coercedcompliant or a coerced-internalized one or whatever. Logically it would seem, the corroboration requirement by be foreclosed should unequivocality addressing concerns not and admissibility. " (50)

The current Scottish law on the corroboration of confessions cannot be considered a for transplant to cure the problems of unreliable confessions. satisfactory candidate

222

Footnotes to Chavter 6

Reform of the Law of Confessions Sir John May, "A Report of the Inquiry into the circumstancessurrounding the convictions arising out of the Bomb Attacks in Guildford and Woolwich in 1974", 30 June 1994at p.305. (2)

Steven Greer., "The Right to Silence, Defence Disclosure and Confession Evidence", p. 102 at p. 114 in "Justice and Efficiency? The Royal Commission on Criminal Justice". Edited by Stewart Field and Philip A. Ihomas 1994. See also J. Griffiths in "The Politics of the Judiciary" 1997, at p.212: "Confessions are notoriously unreliable partly because they may be extracted by duress and partly becausesome people are highly suggestible."

(3)

T'he Royal Conmission paragraph 66.

on Crfininal

Justice Report, July 1993, p.64,

Rv Lambe (1791) 2 Leach C.C. 552. (5)

RCCJ (1993) Report page 57, paragraph 3 1.

(6)

Rv Ward (1993) 96 Cr. App. R. I at p.58.

(7)

S. Uglow, "Criminal Justice" 1995 at p. 83.

(8)

G. Gudjonsson, "'Me Psychology of False Confessions" (1989) The Medico Legal Journal, p.94.

(9)

Devlin P. "Easing Passing" 1985 at p.213. the a) As Devlin notes "The detective needed proof of the motive which only the doctor could supply" at p.20. b) Rv Payne (1994) 15 Cr. App. R. 395. Individual Robertson, "Freedom, Law" 39. the the c) and at p.

(10)

Rv Campbefl (1995) 2 Cr. App. R. 262.

(11)

Rv Bailey (1995) 2 Cr. App. R. 262.

(12)

Reported as Anthony Paris and others (1993) 97 Cr. App. R. 99 at p. 109.

(13)

J. D. Jackson, "The Evidence Recommendations" [ 19931 Criminal Law Review at pp. 827-828.

(14)

House of Lords debates, 31 July 1984, Hansard pp.692-693.

(15)

Lord Hailsham in The House of Lords Debates 19th October 1984, Hansard p. 1202.

(16)

A. Choo, "Confessions and Corroboration: a comparative perspective" [19911 Criminal Law Review 867 at 876. Choo comments: "What is required is that be Where judge the reliability of trial an expanded the accorded role. disputed, have duty is judge the trial to make a should a confessional evidence determination him or herself as to the reliability of the evidence".

(17)

RvH

[1995] 2 AU ER 865. Lord Griffiths at p. 878.

223

(18)

ibid at p. 884.

(19)

see 1988 Criminal Justice Act s-34 1994 Criminal Justice Act s.32.

(20)

Rv Isequilla [1975] 1 W. L. R. 716.

(2 1)

Rv Kilner ( 1976] Criminal Law Review 740.

(22)

Rv Davies [ 1979] Criminal Law Review 167.

(23)

Rv Powell [1980] Crimiml Law Review 39.

(24)

Rv Miller (1986] 2 All ER 119.

(25)

Rv Effik and MitcheH (1992) 95 Cr. App. R. 427 at p-433.

(26)

1. H. Dennis, "Miscarriages of Justice and the Law of Confessions: Evidentiary Issues and Solutions" [1993] Public Law, p.291.

(27)

On the origins of s.77 Professor Leigh has written: "Opposition arguments that confessions by mentally handicapped persons ought not to be admitted for in by later unless corroborated were met part a a amendment providing Observations jury in L. LeigI-4 "Some See to the special warning such cases". on the Parliamentary History of the Police and Criminal Evidence Act 1984" in "Public Law and Politics", edited by Carol Harlow, 1986 at p. 112. S.77 states that "Without prejudice to the general duty of the court at a trial or indictment to direct the jury on any matter on which it appears to the court do to appropriate so, where at such a trial: (a) the case against the accused depends wholly or substantially on a confession by him.; and (b) the court is he is handicapped; (i) that satisfied mentally and (ii) that the confession was in independent the not made presence of an person, the court shall warn. the jury that there is special need for caution before convicting the accused in because the the that of the need arises reliance on confession, and shall explain in " (a) (b) circumstances mentioned paragraph above. and

(28)

Rv Rv Rv Rv

(29)

R. v Mackenzie (1993) 96 Cr. App. R. 98. As A. Choo has pointed out it would be better if the Mackenzie, power should be exercisable whenever the prosecution case depends wholly on confessions jury directed that no properly could properly which are so unconvincing is the them, the regardless of whether confession unreliability of convict on factor. Choo, handicap A. "Evidence, to to or some other mental attributable Text and Materials" 1998, p.407.

(30)

R. Reiner, "Investigative Powers and Safeguards for Suspects" [1993] Criminal Law Review, p. 808. "By the time the Report of the Royal Commission was published in July 1993 there had been a distinct shift in the law had issue debate though the and order even anxiety on about public intensified rather than abated Although lack of confidence in the integrity of ... justice the the evidentý political mood seemed popular remained and criminal to have shifted to an even greater concern with the system's effectiveness in tackling crime. "

Everett [1988] Crim. L. R. 826 C.A. Moss (1990) 91 Cr. App. R. 37. Cox [1991] Crim L. R. 276 C.A. Glaves [1993] Crim L. R. 685 C.A.

224

(31)

R. Pattenden,"Should Confessionsbe Corroborated?" [19911107 LQR 317. In Australia judicial warnings in relation to the maldng of disputed and uncorroborated confessionsare required, McKinney and Judge v.R. (1991), 171 CLR 468. The Royal Commission on Criminal Justice, 1993, also came down in favour of a judicial warning to juries about the dangers of false confessions: see RCCJ Report Chapter 4, paragraph 4.77. As Dennis comments:"There remains a good casefor the introduction of such a warning requirement,but to date no legislation has implemented this recommendation it I% "The have 486 inclination the to to and at p. courts give effect shown no Law of Evidence" 1999by I. H. Dennis.

(32)

Rv Ward (1993) 98 Cr. App. Rep.337 held that expert evidence was admissible to show the likely unreliability of her confession as she was disorder, her interrogation the time suffering at which whilst a personality of not a mental illness was of the nature of a mental disorder: see also Rv Raghip, (1991) for another case where expert evidence was allowed on the by defendant the with a personality question of reliability of a confession a disorder. However for a normal defendant it will not be possible to adduce he is likely that therefore to psychological evidence unduly suggestible and decision interrogation. The in Rv make an unreliable confession under police Turner [ 19751 1 All ER 70, stands as a bar to the admissibility of expert here. is L. J. "An Lawton that: commented expert's opinion evidence furnish is likely be information to to the court with scientific which admissible knowledge judge jury. If the experience and of a on the proven outside or facts a judge or jury can form their own conclusions without help, then the is More " Lawton L. J. opinion of an expert unnecessary. particularly went on to comment that the jurors do not need a psychiatrist to tell them how ordinary from likely illness to react to the not suffering mental people who are are life. has Perhaps the time stresses and strains of now come to partially in Rv Turner the position stated abandon and recognize that concepts such as interrogative suggestibility and compliance may well be beyond the knowledge of the average juror who may not therefore appreciate how an false confession under normal otherwise normal person could make a interrogation by the police. Expert evidence of a personýssuggestibility under interrogation should be more readily admitted than at present. For a more sceptical view of the value of expert evidence about the concept of interrogative suggestibility in the normal criminal case see Dennis: "The Law Justice: Miscarriages Evidentiary Issues Confessions Solutions" of and and of (1993) Public Law at p. 112.

(33)

Rv Edwards (1991) 93 Cr. App. R. 48.

(34)

G. RobertsonQ.C. "Freedom,the Individual and the Law" 1993,at p.378.

(35)

John Sprack, "The Trial Process" p. 83 in "Criminal Justice under Stress" 1992, Casale. by Stockdale and edited

(36)

Quoted in David Rose "A Climate of Fear: The Caseof the TottenhamThree" 1992,p. 156.

(37)

The Royal Commission on Criminal Justice(1993) paragraph33, p. 127. See also, Law Commission Consultation Paper No. 141, "Evidence in Criminal Proceedings:Previous Misconduct of a Defendant" at p.234, where "that imputations in loss Commission Law the proposed result should of the do in incident if to the they the not relate witness'sconduct or the shield only investigation in question".

(38)

Rv Wheeling [1789] 1 Leach C.C. 311n.

225

(39)

Rv Sullivan [1887] 16 Cox C.C. 347. See also Rv Kersey (1908) 1 Cr. App. R. 260 for Court of Appeal authority for the proposition that a confession alone can sustain a conviction.

(40)

Porter v Court [19631 Criminal Law Review 39. And see on this issue "Convicting on Confessional Evidence in the Complete Absence of a Corpus Delicti", Roderick Munday (1993) 157 Justice of the Peace and Local Government Law at p.275.

(41)

In "Interrogation and Confession: A Study of Progress, Process and Practice" by Ian Bryan 1997 he comments,at p. 307: "In protecting the confession as an admissible and pritna facie reliable specie of evidence the law has had recourse to a variety of legitimating forms ... The PACE legislation may be seen as making the revival of statutory control and the restoration of law. " the regulation consistent with rule of

(42)

Rv Hudson (1980) 72 Cr. App. R. 163.

(43)

Section 34 states that: "Where, in any proceedings against a person for an is before he (a) that the time offence evidence given was accused: at any charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings, or (b) on being charged with the offence or officially informed that he might be for failed fact, fact it, being in to the prosecuted mention any such a which have been the time the existing circumstances at accused could reasonably informed " to the then expected mention when so questioned, charged or ... draw jury inferences from failure "may the court or such as appear proper".

(44)

1. H. Dennis, "The Law of Evidence" 1999 at p. 33.

(45)

ne Royal Commission on Criminal Justice (1993) "Confession Evidence" by D. Wolchover and A. Heaton Arnistrong. Criminal Law Library 1996.

(46)

Gilmour v H. M. Advocate (1982) SCCR 590.

(47)

Wilson and Murray v H. M. Advocate (1987) SCCR 217.

(48)

The Royal Commission on Criminal Justice (1993) at p. 63 paragraph 60. In the Inquiry into the circumstances surrounding the convictions arising out Bomb in in Attacks Guildford Woolwich 1974 the and one of the wrongly of Richardson, is "much Carole that, of the people, quoted as saying convicted information in her confessions came from overhearing informal conversations between police officers". At p.59 of "A Report of the Inquiry into the in Bomb Attacks the the convictions arising out of circumstances surrounding Guildford and Woolwich in 1974" by Sir John May, 30 June 1994.

(49)

Lord Bingham when Master of the Rolls gave a useful summary of some dangers false he the to counteract of confessions, when reform proposals body for "A that of evidence shows growing certain people will wrote: in improper the absence of any pressure, psychological and other reasons fraud inducements, threats, or violence, confess to crimes they have not for The most constructive proposals remedying this problem are committed. be interrogations video-taped so that the manner in which a that should be defendants have that may assessed; made should an early confession disavowing before judicial a confession a officer; that the opportunity of 226

truthfulness of a confession should require to be corroborated by independent defendant's be that evidence; and perhaps a accepted as suggestibility should a proper subject for expert evidence." from "The English Criminal Trial: The Credits and Debits" in The Clifford Chance Lectures L edited by B. Markesinis 1996, p.91 at p. 102. Although beyond the scope of this thesis the problem of the current inadmissibility of "third party" confessions needs to be addressed by law reformers. The rule in Rv Turner (1975) 61 Cr. App. R. 67 which prevents an from introducing into trial, evidence that another person not on trial accused had allegedly confessed to the crime is a potential cause of miscarriages of justice. Whilst confessions to crime by accused persons are admissible in by evidence way of exception to the hearsay rule, the hearsay rule applies in full to confessions not made by an accused at trial. For an argument that third become law in party confessions should admissible under certain strict Andrew LT. Choo "Hearsay and Confrontation inCriminal conditions: see Trials". Clarendon Press 1996 at pp.61-65. (50)

P. Mirfield, "Silence, Confessions and hnproperly Obtained Evidence", 1997 at p.350.

227

CHAPTER 7

ILLEGALLYAMPROPERLY

OBTAIN-ED

EVIDENCE

Introduction This chapter proposes to examine the English law and theory behind the issue of the exclusion of illegally or improperly obtained evidence. The first section will involve Then historical it has by issue been dealt English the an courts. overview of as with there will be a discussion of the changes Section 78 of The Police and Criminal Evidence Act has brought to this topic. Then there wil-I be an in depth discussion of the theoretical justifications for excluding illegally or improperly obtained evidence. The next section wiH focus on improperly obtained evidence and covert police PACE. deal 78 final Section The the with of casesunder operations. section will

An Historical Overview of the Issue ýFhegoverning principle in this area of criminal evidence in England, is that stated by Lord Goddard in Kuruma vR in 1955. (1) "The test to be applied in considering whether evidence is in issue. it is is to the relevant matters admissible whether If it is, it is admissible and the court is not concerned with how it was obtained. " As a matter of law illegally or improperly obtained evidence is admissible. This by been doubted in has been has the recently reaffmned cases never principle which the Court of Appeal in Rv Khan (1994) (2). As was stated in that recent case, is facie illegal if it is by to the prima relevant means admissible evidence obtained issue of the accused's guilt In this way English law still differs from the law in Scotland and the law in the U. S.A. In Scottish law illegally obtained evidence is be illegality in Lawrie (see inadmissible facie the can unless excused some way prim from illegal U. S. In A. 0) (3). ) the (19 Muir evidence obtained an search and v fourth has been U. S. Constitution to the in the amendment subject of violation seizure Ohio Only in Mapp (1961) (4). the ruling v to a strict exclusionary rule since been by have the to the exceptions courts made strict recently comparatively

228

operation of the rule (e.g. see U. S. v Leon (1984) (5). "Ibe inclusionary principle which govems English law on illegally obtained evidence was first formulated in the middle of the nineteenth century in casessuch as Rv Leathm (1861) (6) and Jones v Owen (1870) (7). However, it is possible to point to the much earlier case of Rv Warickshall (1783) (8) as some authority for the proposition that improperly obtained evidence is admissible as a matter of law. In Warickshall a confession was ruled inadmissible on the basis that it was involuntary. However, incriminating facts that were discovered as a result of the inadmissible confession were held to be admissible in evidence, of although confessions improperly obtained cannot be ... received in evidence yet that any acts done afterwards might be given in evidence notwithstanding that they were done in consequenceof such confession." This old principle has been embodied in S.76 (4) of PACE. "The fact that a confession is wholly or partly excluded in pursuance of this section shall not affect the admissibility in evidence, (a) of any facts discovered as a result of the confession... " This does not mean to say that those facts should always be admitted to trial. S.76 (4) facts does be be it In those to they merely allows not say should admitted. admitted, be facts inadmissible S. 78 to those an appropriate case might used rule under the discretion. Robertson comments that, "If a policeman points a revolver at a suspectedterrorist him he threatens to unless confessesthe whereand shoot bomb, time the court should on abouts of an unexploded principle exclude not only the ensuing confession and the fact that the bomb was found as a result of it but also (under forensic bomb 78) the evidence connecting with any section the defendant." (9) Any conviction based on evidence which was secured by such police methods is hence be invoked S. 78 to exclude to should command moral authority and unlikely Robertson's here is forensic position similar to the position the science evidence. dissent his in in RCCJ Zander by to the that note of any serious violence advocated lead investigation the to a collapse of against suspect should the course of a criminal by the prosecution case the exclusion of all evidence.

229

The real developmentin the English law on illegally obtained evidencehas been, it will be argued, in the scope and rationale of the discretion to exclude illegally or improperly obtained evidence from the criminal trial. This discretion was only first recognisedin 1955in Lord Goddard'sdictum in Kurum and was limited in its scope applying, according to Rv Sangonly to evidenceobtainedfrom the accusedafter the , commission of the offence and by analogy to the privilege against self-incrimination which the accusedenjoyed pre-trial. The passageof S.78 of the Police and Criminal Evidence Act 1984 representsa noticeable shift in the scope (see Rv Cooke (1995) (10) Court of Appeal for confmination of the fact that S.78 is a substantially wider discretion than the common law discretion) and rationale of the discretion to exclude illegally obtained evidence.But seeRv Chalkley (I 99L (11) discussedin Chapter I for a judicial opinion rejecting a wide application of Section78. It is proposed now to examine the common law rule of admissibility in law for illegally obtained evidence and to suggest that the conditions in which it was adopted have changed to the extent that departure from the rule in terms of the exercise of the discretion to exclude illegally obtained evidence is much more warranted in the late twentieth century than in the mýidnineteenth century. The common law as developed in Rv Leatham. and Jones v Owen reflected a fundamental principle of English law: evidence

is it is admissible unless all relevant evidence subject to an discretion. deciding be In there whether should exclusionary rule or an exclusionary law discretion judges in the nineteenth century would the rule or at common for have there was a sound reason excluding such obviously considered whether With regard to the problem of the creditworthiness of confessions there evidence. formulating in a rule which excluded a confession obtained was obviously good sense by a threat or an inducement on the ground that such confessions are likely to be however Warickshall Ry (1783) (see to with regard evidence obtained unreliable , illegally it is arguable that there was no such sound reason for exclusion. Indeed all the considerations pointed towards inclusion of the evidence, as Mellor J. commented in Jones v Owen 0 870),

I think it would be a dangerousobstacleto the administration hold because if justice that, to we were evidencewas of it be by illegal means would not usedagainsta party obtained " an offence. chargedwith for Mellor its J. has (12) this A. Ashworth comment of use of the concept of criticized by Ashworth 'administration the 'questionable that in justice which way, means of a justice' sometimes requires the exclusion of illegally obtained evidence. However,

230

against Ashworth, is the point that Mellor J.'s conunent was not "questionable" in the context of the 1870s. The production of iflegally obtained evidence by the police for the use in court, although it formed the background of the facts in Jones v Owen (an illegal search by a constable which produced salmon caught by poaching) did not have the modem implications of the "misuse of state power in the collection of evidence for the purposes of criminal trial". (13) This phrase was used by Lord Scarman in the House of Lords debates on the PACE Bill to identify the modem issues with regard to the problem of illegally obtained evidence. For most of the nineteenth century there was not the perceived modem institutional reliance on the police by the criminal court system. The idea of a powerful state for detection the apparatus and investigation of offenders and the collection of for fully in in developed them the nineteenth evidence against use court was not century: on this point see Chapter 1 of this thesis. However, by the late nineteenth century and early twentieth century the police were the main agency for the gathering of evidence and the prosecution of offenders. The Judges' Rules of 1912 which attempted to regulate part of the investigatory side of police work, namely the questioning of suspects, was some evidence of this core role its became dependent The the of police and official recognition. criminal courts on the police for the construction of casesand the production of evidence for use in court fact did in judicial However, this that this against offenders. period not mean by improperly illegally to the police changed. A attitudes evidence obtained or discretion to exclude a confession obtained in violation of the Judges' Rules was but discretion for in Rv Voisin (1918) the no such was recognised recognised improperly obtained non confession evidence until 1955. The orthodox exclusion of late by Diplock in Lord Rv Sang 1979 (14) that, as as was view as repeated

"The function of judge at a criminal trial as respects the admissionof evidenceis to ensurethat the accused has a fair trial accordingto law. It is no part of the judge's function to exercisedisciplinary powers over the in the as respects way which police or prosecution is be by the trial to usedat obtained them ... evidence is how judge is trial the concernedwith not at a what by the evidenceadduced the prosecutionhasbeen how it is by but used the prosecution with obtained " trial. the at

An extremely limited discretion to exclude non confession evidence obtained in an 231

improper way by the police was recognised in Kuruma as late as 1955 but most cases of illegally or unfairly obtained evidence fell outside the operation of this discretion and were therefore subject to Lord Diplock! s statement of the unyielding inclusionary principle. Evidence from an illegal search and evidence from entrapment are two

examplesmentionedby Lord Diplock as falling outsidethe Kuruma discretion. Lord Diplock commentedthat the discretion was limited to "evidencetantamountto a self-incriminatory admission which was obtainedfrom the defendantafter the offence had beencommitted." As Lord Taylor pointed out in Rv Christou, "... in view of the tenns of those dicta, the paucity of discretion in has been exercised so as the cases which to exclude legally admissible evidence is not surprising. " (15) Despite the increasing reliance by the criminal courts on police evidence by the beginning of the twentieth century there was still perceived to be a clear distinction between the investigatory process conducted by the police and the fact finding hence late judge is Diplock's 1979 trial, that the process at comment as as solely by how it trial the police the not with was obtained concerned with use of evidence at or anybody else. If particular police behaviour in the obtaining of evidence was considered to be judges had judicial in the the then mechanism of a need of checking offensive and device feelings known Indeed in to the to their this police. of make rebuke open court the judicial rebuke whilst admitting the improperly obtained evidence became the breaches Judges' Rules judicial the to police of on obtaining response normal judicial instances being to the usual response other of police confessions as well as A discretion to exclude a confession may have been recognised in Rv Voisin (1918) but breach of the rules rarely led to exclusion. Judicial rebuke seems to impropriety.

have been the most the police could have feared from their breach of the rules in Rv Lemon Mills Lord Goddard (1947) Rv per and and obtaining a confession, e.g. Mackintosh (1982), per Lawton L. J. (16) few from bench the to the police the If in a more cynical age, sharp words notion of a impropriety it is in inadequate the to obtaining of evidence response police seems an have judicial thirty that would years rebuke carried to ago a a remember appropriate

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lot more weight with police and public than at the present time when the public reputation of the judiciary has declined so much. In support Of this claim on declining confidencein the judiciary, seethe following remark by Lord Taylor of Gosforth. (17) In 1936 the Lord Chief Justice Lord Hewart said "Her Majesty's judges are satisfied with the almost universal admiration in which they are held". In 1992 his successor, Lord Taylor of Gosforth, acknowledged that no judge today would express such sentiments: "If he did he would be lambasted by the press, and rightly so! ". Even as late as 1975 Devlin (18) could write "The English judiciary is popularly treated as a national institution, like the navy and tends to be admired to excess". A judicial rebuke at one time was likely to carry some weight in police culture because of the very high status of the English judiciary. As Cross pointed out using the 1947 case of Rv

Mills and Lemon (19) as an

iflustration, "Is it to be supposedthat when the Lord Cl-fiefJustice The Bristol Police learn the said sooner study, and abide by the Judges'Rules the better' the conductof the police Bristol because his Lordship admitted of was unaffected in breach a confessionobtained consequenceof a of those rules?"

Therefore judicial rebuke was viewed as a way of checking police impropriety

without the social cost of the exclusion of relevant evidence. Roskill L. J. in Rv Sang (20) commented that, "Experience shows that expressions of judicial disapproval deterrent justified their are not without effect as a when to reprehensible or arbitrary police behaviour. " The Law Commission in 1977 had a similar faith in the notion of the judicial rebuke influence" "substantial that the they criminal courts could exert commented when judicial disapproval". by (21) strong expression of an occasional" over police conduct G. Robertson (1994) comments that this view of the Law Commission" is sanguine in least English in However, 1970s, (22) the context at preof society a the extreme". judicial rebuke was likely to have had some influence on the police even in the because improperly the to of obtained great status evidence exclude action of absence judges time. English that at of

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The same approachwas taken to evidence obtainedby the use of entrapmentby the police, a judicial rebuke if necessary,followed by the admissionof the evidence. An example of this approachis the entrapmentcaseof Rv Birtles (1969) (23), where the Lord Chief Justice Lord Parker rebuked the police for acting as agent provocateurs but held that the evidenceof the police officer was rightly admitted. The only legal consequenceof the fact of entrapmentby the police was that the sentenceimposed on the appellantwas reducedby Lord Parker. However, once a discretion to exclude improperly obtained evidence was recognised in Kuruma vR then the way was open for progressively minded judges who thought that the judges should be more willing to exclude illegally or improperly obtained evidence tendered by the police. In the 1970s trial judges in the casesof Rv Foulder (1973) (24), Rv Burnett (1973) and Rv Ameer (1977) excluded evidence obtained by the entrapment of the defendant into committing a criminal offence by the police. Rv Sang (1979) H. L. can be understood as an attempt to halt this tendency of some trial judges to exclude evidence because of dislike at the way it was obtained, hence Lord Diplocles comment, "However much the judge may dislike the way in which a before proceedings particular piece of evidence was obtained if it is were commenced, admissible evidence probative of the accused'sguilt it is no part of his judicial function to for it this reason." (25) exclude

Rv Sang re-establishedthe old principle that all relevant evidence is admissible irrespective of how it was obtained and that any discretion to exclude is very narrow in scopeand certainly doesnot encompassevidenceobtainedfrom entrapment. Only five years later S.78 of PACE was legislated which was based on a view that the judiciary should be concerned with how evidence is obtained. Lord Diplock had famously said in Sang "It is no part of a judge's function to exercise disciplinary powers over the police or prosecution as respects the way in which evidence to be used at trial is obtained by them... "'

However, during the debateson the PACE Bill Leon Brittan, the Home Secretary, commented,

234

"In our view it can indeedbe a proper part of the judge's function to have regardto the way in which evidencehas beenobtained bear it if those to to upon the and refuse admit circumstances fairnessof the proceedings. That is a principle which we are for first, to the time in statute." (26) prepared seeenacted

Lord Scarman whose own amendment was rejected in favour of the amendment drafted by the Lord Chancellor, made the important point that his amendment judge be the to extending power of a exclude evidence obtained unlawfully should Bill in Criminal Evidence Police the the viewed as a whole. In context of and discretion known difference between law the to Lord the explaining common Goddard, Lord Parker and Lord Widgery and his own amendmentfor a discretion to Lord Scarman illegally said, exclude obtainedevidence,

"One small si .ficant answer tells the whole story. It is because there was no Police and Criminal Evidence Act in their day and we are discussing this amendment in the light of a codification known for the moment as the Police Bill. " Evidence (27) Criminal and

This comment is significant for understanding the rationale of exclusion under S.78 of PACE. The PACE Act represented a negotiated political settlement between the interests of the police and the suspect. It was recognised that the police have the duty for important behalf investigate this the to community and socially of crime on for in the to to police gather evidence use the purpose enhanced powers were given prosecution of offenders. However, as Lord Scarman commented, the PACE Bill also recognised the principle

of, "Safeguarding citizens against the misuse of police power in for purposes of criminal the collection of evidence " proceedings.

Scarman's 'reversed illegally Lord Parliament Although onus' rule on rejected illegality be facie inadmissible (prima the unless could excused) obtained evidence Hailsham, Lord Chancellor) instead, by Lord Lord 78 (drafted the S. and adopted how insight into Parliamentunderstood is ScarmaiYscomment quoted above a useful discretion illegally to the ideological exclude creation of a statutory or the rationale of 235

improperly obtained evidence. The focus of the old common law discretion (still retained by S.82 (3)) was on 'fairness to the accused',i. e. the*discretion was seenas protecting one vital interest of the accusedpre-trial, namely his privilege againstselfincrimination. Given that the defendantenjoyed a privilege againstself-incrimination at trial then it might have seemed sensible to extend protection to the pre-trial privilege against self-incrimination through use of an exclusionary discretion. The point is that if a suspectwas unfairly induced to incriminate himself in the police damage his begins have been done then the the trial station would already and when privilege against self-incrimination at trial would have lost its bite if the defendant had been tricked or unfairly inducedto incriminate himself in the police station. This analysis perhaps explains why the House of Lords in Rv Sang stated that the exclusionary discretion only extended to protecting the privilege against selfincrimination of the suspectpre-trial. It would have been hypocritical to assertthat the defendantenjoyed a right not to testify at trial whilst allowing the police pre-trial to unfairly induce the suspectto incriminate himself.

The impact of Section 78 of the Police and Criminal Evidence Act on this topic The focus of the new discretion in S.78 is, it is submitted, on the lack of state probity in the gathering of evidence which if it reaches a certain level of impropriety or involved the breach of important rules for the conduct of investigations could so fairness be the that the the to of proceedings evidence ought adversely affect excluded. That the S.78 discretion is wider than the common law discretion has been recognised by the Court of Appeal in Rv Cooke, July 22nd 1994 - the Court of Appeal

commentedobiter,

"Ibe discretion of the court not to admit evidencewhich was improperly obtainedwas previously strictly circumscribed, Rv Sang(1980) A. C. 402. Despite someexpressionsof it is has Section 78 the that to clear given contrary opinion the courts a substantiallywider discretion."

Reference by the Court of Appeal in Rv Cooke to "some expressions of opinion to

236

the contrary" can be taken as a comment on Rv Mason (1987),where Watkins L.J. said that S.78 merely re-statesthe common law discretion. In Rv

Christou and Wright (1992) Lord Taylor commented that the "criteria of fairness" (28) are the sameunder the common law as under S.78. Rv Cooke makesit is line different from law discretion. In discretion S. 78 that the clear with a common the approachtaken earlier in this thesisit is to be arguedthat this changein the law of evidencewhich is now recognisedby the Court of Appeal is due to a changedview of the role of the police in relation to the community and the criminal justice system. A by illegally improperly that the police recognition reliance on evidence obtained or can weaken the moral and expressive authority of the verdict, so that illegally or improperly obtainedevidenceis sometimesrightly excludedby the use of S.78. PACE represents a politically negotiated attempt to balance the community interest in detect the to granting police extra powers and investigate crime and the community interest in controlling misuse of those powers. Tbe "fairness of the proceedings" by be breach, deliberate breach could upset particularly of proper procedures statutorily laid down for the investigation of crime. A useful and interesting summary of the uses of the S.78 discretion was provided by Lord Lane in Rv Quinn (1990). Lord Lane said, "'The function of the judge is therefore to protect the fairness fair if the a of proceedings and normally proceedings are jury hears all relevant evidence which either side wishes to for before but become if it, proceedings may unfair place is example, one side allowed to produce relevant evidence for which one reason or another the other side cannot been has there an abuse properly challenge or meet or where been by because has evidence obtained of process, e.g. deliberate breach of procedures laid down in an official Code of Practice." (29)

The referencein Lord Lane'sjudgement to the unfairnesscausedby one side adducing is the that other side cannot properly challenge or meet relevant to cases evidence have Rv Weerdesteyn Keenan Rv the where police not complied with and such as the recording provisions for interviews and as a result the defendant is put at a disadvantage in in challenging police an alleged evidence of confession substantial This is in bad 4 Chapter thesis. this the of so whether or not police acted court: see faith. S.78 is relevant to exclude a confessionin that context. However, the reference for is interesting S. 78 'abuse the the potential relevance of to an of process' and illegally As Professor has Birch obtained evidence. of commented, exclusion 237

"There is the quite distinct unfairnessgeneratedby letting breaking the rules of the game, one side get away with C. J. Lane Lord terms an abuseof the processof which the court and which is about as close as we have come to for to the the acknowledging need preserve respect and legitimacy of the verdict." (30)

The commentof Lord Lane in Quinn is consistentwith viewing the S-78discretion in the context of illegally or improperly obtained evidenceas being concernedwith the misuse of state power and bad faith non compliance with the proceduresstatutorily laid down for investigation. Lord Lane in Rv Quinn also commentedof S.78 that , "the section gave the courts power to express disapproval of objectionable police by methods excluding the fruit of such misconduct". Judicial commentwhich is very different from the sentimentsexpressedin Rv Sangby the House of Lords. The common law basis for the discretion to exclude illegally or improperly obtained evidence, namely to protect the suspect's 'privilege against self-incrimination' is therefore no longer at the heart of the rationale for the exercise of the discretion. It is generally unwise to extrapolate firm conclusions from a comparison of a few cases only but an indication of the change in judicial attitudes to illegally obtained be from issue in tile the prethe treatment evidence can of gathered a comparison of PACE case of Rv Apicella (19851 (31) C.A. with the post-PACE case of Rv Nathaniel (1995) (32) C.A. Both cases concerned the admission of scientific high in evidence of probative worth a serious criminal case. In Rv AiDicella the The three accused was charged with raping girls. strongest evidence against him fact in that each of the girls as a result of the sexual attack had the consisted found The have to the same contracted an unusual strain of gonorrhea. accused was in issue by initially The the prison doctor strain of gonorrhea. was sample obtained for therapeutic purposes. 'nie accused submitted to giving the body fluids sample because he had been told, wrongly, by a prison officer, that as a prisoner he had no by he but it. The to the to sample was used prosecution prove was the choice give held Rv Lawton L. J. Payne that the evidence was rightly admitted. rapist. on appeal (1963) (33) was distinguished but it was not clear on what grounds it was distinguished. Rv Payne represents (with Rv gourt (1962) on very similar facts) the have been Kuruma the time evidence should court said excluded under an appeal only discretion. In Rv Payne the appellant was asked when he went to the police station by be doctor, it him he to to that examined a made clear wifling and was was whether doctor the that that should see whether the appellant was suffering the purpose of was

238

from any iHness or disability. The appellant was told that it was no part of the doctor' s duty to examine him in order to give an opinion as to his unfitness to drive. In fact the doctor was called as a witness for the prosecution and gave strong evidence

in regard to the extent to which the appellantwas under the influence of drink. ýffie appellant was convicted of the drink driving charge. Ibe Court of Criminal Appeal quashed the conviction. It was stated that the magistrate,

"In the exerciseof his discretion ought to have refused to allow that evidenceto be given on the basis that if the accusedrealisedthat the doctor would give evidenceon that matterhe might refuse to subjecthimself to examination." (Per Lord Parker C.J.)

In the light of Lord Parker's comment it is hard to see how Rv Apicella can be distinguished, for the defendant in that case might have refused to consent to supply the sample if he thought that the evidence would have been used against him. It be in Callis Gunn (34) which was a case of unfairly that should remembered v Lord Parker C. J. obtained real evidence, said, "There is no suggestion here that they conveyed to him that he had to accede to the request. If that had been done there for be might a clear case excluding the evidence." In Apicella the impression conveyed to the defendant was that he had to accede to the be, R. Pattenden in R It the that the nature of offence request. may as observed, given Apicefla, v

"Would the law not have looked an assif this highly had been relevant evidence excluded?" (35) In Rv Payne the improperly obtained evidence in issue was only in a case concerning the relatively minor offence of driving under the influence of drink. Writing in 1990, A Gelowitz (36) argued that S.78 does not ftmdamentally alter the He illegally law evidence. obtained commented, position on common

"The strildng.fact is that the Court of Appeal has not yet been in to probative exclude upon real evidence the called discretion Section 78. " under of exercise

239

Indeed, Gelowitz believes that S.78 should not be used to exclude illegally obtained real evidence since it is "pure proof' and therefore its admission cannot upset the fairness of the proceedings: real evidence Gelowitz claims is 'neutral' as between prosecution and defence; what Gelowitz meansby this is that how real evidenceis obtained doesnot affect its probative worth in any way. In contrast,denial of access to legal advice can affect the chancesof the police obtaining a confession; so in legal denial has been that consequencewhere of advice wrongful the confession justifiably be Section Gelowitz 78. However, might should consider excluded under the point that if the police had followed proper proceduresfor obtaining real evidence then they might not have obtainedthat evidenceat all and that it is only due to police destroy duty in Rv Nathaniel (as the to non-observanceof proper procedure and in is Therefore S. 64) that the samples under an real evidence obtained at all. important way the real evidencecomesbefore the court affected by the manner of its be in S. 78 that therefore obtaining and should used to exclude the an appropriatecase evidence in order to safeguard the 'fairness of the proceedings' - the proceedings including pre-trial eventsin the criminal investigation. However, in the case of Rv Nathaniel (1995) the Court of Appeal quashed a high the that conviction on ground real evidenceof probative value in a caseof great had been In involving robbery wrongly admitted. seriousness charges of rape and Nathaniel the prosecution relied on DNA evidence which had been obtained from the from he had been in charge of rape which acquitted. accused connection with another In breach of S.64 of PACE the police did not destroy that sample but it was kept on the Metropolitan Police computer index. Section 64 states, "If (a) fingerprints or samples are taken from a person in investigation the of an offence; and connection with (b) he is cleared of that offence, they must be destroyed as soon as practicable after the conclusion of " proceedings.

When the appellant was investigated for the rape and robbery for which he was his DNA found discovered it to that the that profile was match of was convicted found be judge high "a This the trial to of evidence, which victims' assailant. he in probative value" was admitted evidenceand was convicted. Chief Justice his Taylor Lord Lord Appeal the Court The with conviction quashed of

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breach judgement. Lord Taylor the giving police of the statutory placed emphasison duty under S.64 to destroy the DNA sample when the appellant was acquitted on the other rapes. Bad faith was not allegedby the defencebut the police still had breached the statutory duty and the appellantin the words of Lord Taylor "... had in effect beenmisled in consentingto give the blood sampleby statementsand promiseswhich were honoured. " not The appellant had been told before he consented to giving the original sample that it would be destroyed if he was prosecuted in relation to the offence and acquitted. Before this decision in Rv Nathaniel, Professor Birch had commented on the case of Rv Cooke that, (37) "It would seem that whatever the theoretical potential of S.78 the courts are as reluctant as they were at common law to exclude scientific evidence which clearly shows that an accusedperson has committed a serious offence " such as rape. Nathaniel is significant in this respect. Consistent with other decisions important S. 58 Rv Samuel) PACE (see or the concerning such as provisions of is insisting Court Keenan, Rv Canale Appeal Rv (see the of recording provisions

Rv

that the scheme for fair investigation of offences established by PACE should be be destroyed if PACE by S. 64 to the required samples an respected police. of has This follows in their provision an obvious use criminal proceedings. acquittal be build database dimension, liberties to the a sample allowed on civil state should not is have been S. 64 trial part of the scheme of citizens who acquitted at of crime. fairness between police and suspects. The police are given powers to obtain samples from suspectsto investigate and detect crime effectively but the quid pro quo of this is that such samples must be destroyed if an acquittal results following a prosecution involving samples taken from the accused. The absenceof bad faith as a requirement for exclusion in Nathaniel is also noteworthy. In Matto v DPP (1987) (38) the crucial ' factor which led to highly probative real evidence (a breathalyzer test) being excluded in faith bad finding 78 their the S. the the the of exercise on part of police of was under be highly Nathaniel that probative real evidence can excluded under suggests powers. S.78 even in the absence of bad faith. The comparison between Apicella and Nathaniel is a striking illustration of the effect judicial its PACE S. 78 to on attitudes underlying rationale and of the of passage of

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evidenceobtainedby the police in a way which violates fair standardsin the conduct of criminal investigations.

Real evidence obtained bv an unlawful search

A further Mustration of how Section78 has affectedthe law with regardto illegally or improperly obtainedevidenceis provided by the caseof Rv Khan (1997) (38b). Lord Diplock in Rv Sang famously said that there was no discretion to exclude evidence by fflegal obtained an search. However in Rv Khan the Court of Appeal commented that if the secondsearchof the accusedhad been illegal then the judge would have had a discretion, not an obligation, to exclude it. The Court of Appeal refused to interfere with a judge's decision to admit the evidence of drug-smuggling by a diplomat. However, as Dennis points out, (38c) "It may well be that exclusion of the fruit of unlawful be but this does not detract from the searcheswill rare, significance of recognising that Section 78 confers a discretion to exclude such evidence. This case would be by Lord DiplocWs in Sang not covered statement discretion. " the of

The theoretical

justifications

for excluding illegally

improperiv or

obtained

evidence

It is proposednow to examine the different rationales which have been propounded for the exclusion of illegally obtained evidencefrom the criminal trial and to examine have in been they to the extent which recognised English criminal evidence. The debateover illegally obtained evidence is primarily a political one rather than a level basic At the question of the admissibility of relevant a one. purely evidential illegally obtainedpits crime control concerns and reliable evidenceof guilt unfairly or debate become The in liberties the political nature of will clear concerns. againstcivil illegally for discussion the the exclusion of obtained various rationales the of evidence.

242

However, before consideration is given to the various rationales that have been propoundedfor the exclusion of such evidence,it is proposedto consider a view of the problem which in effect denies that there is an issue at all with regard to the admissibility of impoperly obtained evidence. Ashworth terms the view "the reliability principle". This principle is justified on the basis of a controversial view of the proper purposesof the criminal trial and the rules of evidencewhich control the it. Wigniore is a leading example of a proponent of this to admission of evidence view. Polyviou gives a useful summaryof the position, (39) "To begin with, rules of evidence are or should be only designed to enable courts to place correct determinations disputed defined issues; illegally of specifically obtained evidence is as reliable and as probative as lawfully evidence obtained; and since the courts need before it issue to the reliable all evidence material only which is the guilt or innocence of the particular accused, the way in which probative evidence currently before the court was obtained is immaterial to this issue and such be therefore evidence should considered." It is important to note that when commentators talk of illegally obtained evidence they illegally ifficit the usually mean obtained real evidence, such as murder weapon, drugs, stolen goods etc. The point is that the reliability of real evidence is unaffected by how it was acquired - the evidence speaks for itself. An exception to this principle is where the accused alleges the real evidence was 'planted' upon him. In this way illegality in planting the evidence affects the probative value of the real police evidence.

As Ashworth (40) conunents, the 'reliability principle' is based on, functions between 11 the of criminal separation clear -a determine is to the truth of the court whose purpose charges against the accused, and other agencies such as deal improprieties disciplinary tribunals with which police by law enforcement officers. "

Tbe 'reliability principle' can also be bolsteredby the observationthat what is fair and for investigations in is the purposesof the exerciseof an exclusionary what not police discretion will lead to uncertainty in practice. As Roskill L. J. commentedin Rv Sang

243

"Subjective judicial views of what is morally permissible or reprehensible are an unsafe guide to the administration judicial law to the the and of criminal proper exercise of discretion. "

Roskill went on to say that a trial judge should not undertake passinga necessarilysubjectivejudgement on the ethics of the police ... a judgement from which the has prosecution no right of appeal." (4 1)

The reliability principle could' of course accommodate exclusionary rules or discretions against certain types of unreliable evidence, for example, hearsay but the theory would deny any cogent reason for evidence law to exclude as evidence, law discretion from is both Apart a matter of or evidence which relevant and reliable. by issues illegally the confessions obtained violence, obtained evidence surrounding rarely involves concerns about the probative worth of evidence. The issues behind the exclusion of illegally or improperly obtained evidence are not probative concerns, rather they are of a 'political' nature involving such considerations as checking the abuse of police power, safeguarding the integrity of the criminal court or vindicating the 'rights' of the accusedthrough the exclusion of evidence. Some of the dicta of the House of Lords in Rv Sang,approach the Wigmore view of the purposes of the rules of evidence (see especially Lord Diplock). The extremely limited discretion to exclude evidence on the basis of the 'nemo debet"principle is one distinction between Diplock in Sang Wigmorean the the point of approach and based illegal Both to or unfairly obtained evidence. views are approach on a clear distinction between the investigatory stage and the trial stage. As was said in Sang a trial judge should only be concerned with the fairness of the trial and not with how by Lord Diplock As is the commented, police. evidence obtained

"However much the judge may dislike the way in which a before proceedings particular piece of evidencewas obtained it is if admissibleevidenceprobative of were commenced the accused'sguilt it is no part of his judicial function to for " it this reason. exclude

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The Deterrence Principle The idea behind this theory is that the exclusion of evidencefrom the criminal court is a way of disciplining the police for the impropriety in the obtaining of that evidence. If the police do not wish to risk 'losing' the conviction of a guilty offender through the exclusion of evidence they should not engage in impropriety in the obtaining of evidence. The courts can 'discipline' the police by excluding evidence from the criminal trial and although an acquittal is not always inevitable, the exclusion of evidence, especially confessionevidence, can sometimesundermine the prosecution degree to case a where a conviction is not sustainable. However, there is a great cost for achieving this aim by excluding evidence: the non because conviction of guilty offenders of the exclusion of reliable relevant evidence deterrence he Wigmore brought on grounds. out what considered to be the essential disciplinary the absurdity of principle. Wigmore commented, (42) it

is the our way of upholding constitution not to breaks but let it, the to strike at man who off somebody broke " else. who something else

This is the point that it is the public not the police who are punished by the exclusion for illegally free. improperly obtained evidence, of or an offender may go

However, the police have a professional interest in the conviction of offenders, an important point which Wigmore overlooked. Therefore the police may be punished by the exclusion of evidence from the criminal trial. The point remains however, that the public are also punished by the non conviction of a guilty offender. Further arguments against the law of evidence perforn-iing a deterrence function might focus on the lack of efficiency of such an approach at a great social cost - the acquittal by Oaks in Research USA twenty-five the the conducted cast years ago of guilty. doubt on the efficiency of the exclusionary rule for the products of illegal search and by deterrence One in the terms police of misconducts. reason suggested of seizure Oaks for the weak effect of deteffence was that in many search and seizure cases the in but mind merely to confiscate searches were not carried out with a prosecution illegal material or harass known criminals, therefore the police knew that their actions by be Interestingly, Oaks insisted likely the that to criminal reviewed courts. not were it would be a mistake to extrapolate from his conclusions on the weak deterrent effect in deterrent the to search and seizure cases effect of an of an exclusionary rule 245

exclusionary rule in confession cases: (43)

"The variety of reasonsfor an improper searchand seizure is in marked contrastto the limited number of reasonswhy illegal in the type police could engage of conductthat causes the exclusion of a coercedconfession... the predominant incentive for interrogation is to obtain evidencefor usein be likely is in Consequently to this court. police conduct area responsiveto judicial rules governing the admissibility of that evidence."

This is interesting in the light of the purposes of S.76 2(b) of PACE which can be interpreted as seeking to deter unreliability inducing methods of police interrogation through the exclusion of confession evidence: on this see Chapter 3 of this thesis. It may be argued that given the lack of clear evidence that exclusionary rules actually deter follows highly it the that then significantly police probative evidence of guilt be for deterring is isconduct. This the should not excluded sake of police m especially so where other controlling and disciplinary mechanisms exist and could be developed to control police misconduct in the obtaining of evidence. For example, civil actions against the police have increased significantly in recent have Ibey become years. a useful way of publicising and exposing police being misconduct as well as a route to the vindication of the particular plaintiffs beneficial One Police Act 1964 (see s.48) was to the the rights. of consequences of liable for by forces. Constables in Chief Civil torts their make committed constables for have Metropolitan force Police the that actions against cost example, over a mil=1ionpounds a year in recent years. The embarrassing nature of such actions for the by is Geoffrey Robertson Q. C., who comments (44) to police attested

"Casesof this kind presentsuch an unedifying picture of is in that police conduct considerableeffort expended keeping them out of court and out of the public eye through a negotiatedsettlement." A main reasonwhy deterrenceof police behaviour through the exclusion of evidence is unlikely to be very successful is the competing norms of police behaviour and

public pressureon the police to secureevidenceof guilt. Moreover, the trial would probably not be uppermost in the policemans mind when

246

he committed the illegality in obtaining the evidenceas it would be somemonths into the future. However, caution is neededwith regard to the argumentfrom the power of deterrence factor the the peer pressure as a principle. successof militating against The deterrencehypothesis might be defendedby pointing out that mechanismssuch because the as of the strength of police exclusion of evidence are needed precisely culture pushing police officers towards illegality where that is necessaryto secure evidence of guilt. The deterrencehypothesis could be supported by claiming that deter be to every available means police misconduct should utilised given the strength of police culture pushing the other way. Militating against the deterrence approach to illegaffy obtained evidence is the fact the for function judiciary has been disclaim deterrent English the the to approach of any judge. Lord Diplock in Rv Sang commented,

"It is no part of a judge's function to exercise disciplinary powers over the police or prosecution as respects the way in which evidence to be used at the trial is obtained by them."

Similar sentiments were expressed after the introduction of PACE by Watkins L. J. in Rv Maso Hodgson J. in Rv Keenan and by Lord Lane in Rv Delaney (45) who held, "It is no part of the duty of the court to rule a statement inadmissible simply in order to punish the police for failure to observe the Codes of Practice." However, remarks of Lord Lane in the later case of Rv Canale (1991) do have a

disciplinary edge to them, when holding that a non-recordedconfessionshould have been excluded,he commentsin the following terms, that the pohce officers had, " demonstrated a lamentable attitude towards the 1984 ... Act and the Rules" and

"

for disregard (46) the rules". a cynical ...

Lord Lane also commented that it was Iiigh time" that police officers understood the

importance of the rules relating to the recording of interviews. These comments in from do hint trial the the contain a criminal of exclusion of confessions the context of judicial discipline towards police misconduct. 247

If a justification is to be found for the exclusion of illegally or improperly obtained evidence under the PACE regime (S.78) then deterrence is unlikely to be a satisfactory explanation on both normative and descriptive grounds.

It provides an unattractive theory for exclusion given that it is very uncertain that the theory significantly deters the police and it can be strongly argued that highly probative evidence should not be excluded on such a speculative basis. On the descriptive side of the theory it is positively contradictedby many statementsof the English judiciary disclaiming a "deterrentfunction" over the police.

The Protective Principle A. Ashworth, a leading proponent of this theory for exclusion, sets out its terms thus: (47) "If a legal system declared certain standards for the conduct investigations be it the that then of criminal can argued ... have be to citizens corresponding rights accorded certain facilities and not to be treated in certain ways."

If the legal system is to respect these rights then it is arguable that a suspect whose have been infringed should not thereby be placed at any disadvantage, and the rights does disadvantage for is that the this way of appropriate ensuring suspect not suffer the court of trial to have the power to exclude evidence obtained by improper means. However, there are certain practical and theoretical difficulties with this approach. The first difficulty for the protective principle is - what exactly count as "Rights"'." PACE and the Codes of Practice contain numerous provisions governing many interrogation. investigation be Are these to taken to and provisions all aspects of if is decided it "rights" criteria not, on what which provisions generate and generate do for Do investigation other principles not? ethical of crime rights and which for forward be Ashworth, "a to example, puts right not entrapped" generate rights? justice (by the system criminal should recognise which means of a as a right Ashworth defence by to than according rather means of evidential substantive is likely be However, in England this to right alleged controversial at exclusion).

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least where entrapment is viewed by the criminal courts as being in certain it Smurthwaite (1994) investigative legitimate tool where circumstancesa police - see was assertedby Lord Taylor, " the fact that the evidencehas been obtainedby entrapment ...by by does itself trick require or a not of agentprovocateuror the judge to exclude it. " (48)

An implicit recognition perhaps of the legitimacy of entrapment as an investigative and detection tool in certain circumstances. Also see the opinion of the Divisional Court in DPP v Marshall (1988) per Woolf L. J. for judicial acceptance of the legitimacy of entrapment in certain situations, notably where the police employ The Roskill to entrapment obtain evidence of ongoing criminal activity. refusal of L. J. to mitigate the sentence of the entrapped drug dealer Underhill is also a reflection judicial in this the those of acceptance of engaged a course use of entrapment against illegal of continuing activity. (49) inherent in the protective principle,

Ashworth himself recognises the difficulties

"What should be the test of the existenceand extent of be There particular rights? can no prior assertionof be what rights should or shouldnot recognised." (50)

Another objection to the protective principle would argue that it is not the purpose of

the law of criminal evidenceto vindicate the rights of the suspect,that this is a matter law law is The to the the which extraneous of evidence. of criminal proper purposeof in the the trial to purposes of and verdict criminal cases. The evidence seeks promote because the the they are the rights of pre-trial rights of suspect solely vindication of the suspect is not therefore a value which the law of criminal evidence should be necessarily concerned with. Of course, violation of certain rights of the suspect pretrial could affect the fairness of the trial itself -a confession obtained by torture in for by from be "right to the tortured" should various reasons not excluded violation of However, to argue that the law of criminal evidence should is introduce the through to exclusion of evidence an vindicate a suspect's rights the criminal trial.

ftirther important A unmanageable principle. probably question extremely wide and for the protective principle is - does the deliberatenessof police violation of a right hence breach likely? the the to and make of exclusion of evidence more gravity add Ashworth comments that the deliberateness of police violation of a right is

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"irrelevant". What mattersaccording to Ashworth, is whether prejudice followed any actual infringement of a right.

If prejudice such as a confessionor the obtaining of real evidencefollows breach of the right then it is arguablethat to vindicate the right the evidenceshould be excluded irrespective of the presenceof bad faith on the part of the police. However, it is arguable that deliberateness of police violation of a suspect's rights is a

feature significant of the moral cotitext, i. e. it makes the rights violation worse and therefore the decision to exclude easier. There are other questions for the protective principle which fail to be answered: by discretion? be Do interests the the should protective principle protected a rule or a How is line be drawn? Professor this to of crime control sometimes override rights? Ashworth argues that the law, it may occasionally be justified in not protecting a declared ... limited law in the right, circumstances might accord to the value of crime control priority over the value of a particular right. "

Ashworth gives the example of an item of real evidence which would almost certainly be destroyed if it were not immediately seized and the court might then hold that the justified However, the the right violation of against unlawful searches. as urgency Ashworth himself notes, "If the concept of urgency were readily applied to excuse declared for then the unlawful action rights would stand less and less." (51)

It can be argued that once we concedethat rights can be traded against social goals lose in its then the the we notion of a right preservationof reliable evidence such as it idea idea "right" it be The the that carries with of a should respected proper sense. in inconvenient is If terms this of wider social such goals as crime control. even when in Ashworth the of protection rights override some cases, can as control crime be held line it is the the abrogation against of rights whenever necessary suggests,can interests in do the of crime control? to so Public opinion and political interestswill often be pushing for that line to be crossed 250

full blown "protective feasibility" "political therefore the the and of adoption of a principle" in the law of criminal evidencemust be seriously questioned.

The Judicial Inteority Principle This principle was argued for in the context of the exclusionary rule in the U. S.A. (see Mapp v Ohio (1961) to protect the Fourth Amendment. 71beprinciple suggests that if improperly obtained evidence is adduced at trial then this admission could bring the trial process into disrepute. The investigative process and trial process are linked not only in fact but also in the public perception, so the theory goes, and to command the be distance itself in the the to respect of public appropriate seen court must from circumstances pre-trial improprieties which are serious enough to threaten the integrity of the court. To achieve this distancing from police impropriety in the obtaining of evidence the found Ibe judicial integrity the court should consider excluding evidence. principle a in the words of Traynor J. in the U. S. case of People v Cahan (1955) clear exposition California Supreme Court, (52) "When the very purpose of an illegal search and seizure ... is to get evidence to introduce at a trial, the successof the lawless venture depends entirely on the courts lending its by be introduced. It is the to aid allowing evidence no between distinction be drawn to that answer say a should the government acting as law enforcer and the gatherer of evidence and the government acting as a judge ... Out of for its dignity justice regard own as an agency of and custodian have hand liberty in 'dirty the not of a such court should business' it is morally incongruous for the state to flout ... demand its the time that same constitutional rights and at law. " the citizens observe

Yet this principle behind the exclusion of illegally obtainedevidencehasnot goneunU. S. judicial integrity in A. A the the example recent of criticism of challenged by W. Stuntz, is who commented, provided principle

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"As an independentbasisfor the rule the judicial integrity argumentdeserves(and has recently received) little attention. Our law has long permitted the admission of force by fraud through private or even evidenceobtained discernible integrity the of partieswithout any effect on the court system. There is no obvious reasonwhy evidence have by illegally the police should any greater obtained impact on courts' integrity. Judgescan without hypocrisy inconsistency both admit the evidenceand condemn or (and punish) the police officer for his misconductin obtaining it'/. (53)

The aboveview of W. Stuntz, that there is no discernible difference betweenevidence obtained illegally by the police and evidence obtained by the illegality of private parties is not sharedby the author of this thesis. It is possible to quote Zuckerman's StuntZ Zuckerman to point repudiate view. comments,(54), "Generally speaking it is practical to dissociate the from its legality of evidence where admissibility from individuals incidents of illegality emanate ... do institution judicial the not reflect whose actions on is It justify thus to the admissibility possible as a whole. illegally litigation in of obtained evidence civil where the transgressorsare private citizens. However, today the investigative process is seen as part of the administration debate justice is the of which why regarding illegally has importance. " obtained evidence assumedsuch Stuntz is at least right when he asserts that illegality by a private citizen in obtaining bar its free is in to evidence no admissibility civil proceedings: see Calcraft v Guest (1898) per Lindley M. R. (55) , "Suppose the instrument were even stolen and a correct copy taken would it not be reasonable to admit it? " However, when the situation is the illegality of a police officer in the obtaining of is different from for in the the situation very criminal proceedings use evidence Calcraft v Guest scenario. The criminal courts are reliant on the police to obtain The for in of offenders. prosecution police perform a vital public use evidence function achieving that. The civil courts merely provide a forum by which private is dependence There by disputes. the their no civil courts on private settle can parties disputes interest that their are taken to court rather than parties nor an urgent public has been It justificatory that earlier argued verdicts criminal are settled out of court. hence in has been (56) the to are sensitive which evidence way and and expressive

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hence disputes between Civil judgements obtained. private parties and merely settle are not as sensitive to how evidenceused at trial is obtained. For all these complex reasonsit is absurdto arguethat since evidenceobtainedby the illegality of citizens is not thought to impugn the integrity of the civil courts then illegality by police officers in obtaining evidencecannotimpugn the integrity of the criminal courts. However, Stuntz does reflect a trend in American jurisdictions to give the judicial integrity principle less weight than in the past. Arval A. Morris (57) commentsthat the judicial integrity principle has fallen out of favour with the American Courts since Mapp v Ohio and that deterrence of police misconduct is now the primary for the exclusionaryrule. Morris quotesJusticePowell in United Statesv justification Calandra (1974) who ruled that, , "... in sum the rule is a judicially created remedy designed to safeguard fourth amendment rights deterrent its through generally effect. "

Morris regrets the decline of the judicial integrity rationale which he regards as the "most important" rationale for the exclusionary rule. He in fact, sees the decline of the judicial integrity rationale in a conspiratorial light, for it... once the exclusionary rule's opponents have given it foundation they can attack it. an exclusively empirical They erroneously claim the exclusionary rule extracts from 'high 'the unusually price' society release of an countless guilty criminals'. Then ignoring the dimension integrity (the principle) they constitutional burden by demanding in fight to the that seek shift of Ugh price' the rule's proponents must produce such a demonstration benefits the of and effectivesome clear ness of the exclusionary rule. Finally the rule's opponents declare is there triumphantly that no empirical rise up and deters the that to the rule actually claim evidence support illegal conduct of law enforcement officials. " (58) Therefore, according to Morris, ignoring the judicial integrity principle is part of a have bar by to the to the the rule removed as a exclusionary rule's opponents strategy by illegal by The the search and seizure police. admission of evidence obtained judicial integrity' principle is not even secure where it was first propounded, namely in the U. S. jurisdiction. In response to claims that the admission of unfairly or illegally obtained evidence

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would tend to undermine the integrity of the criminal court and hence the fairness or acceptability of a guilty verdict and that therefore to preserveits integrity the criminal court should considerexcluding the evidence,Wiginore arguedthat, "

by illegality is the ... no meanscondoned. It is merely ignored in this litigation. " (59)

The Wigmorean argumenthere proceedson the assumptionthat there is no sufficient connectionbetweenthe trial processand the investigatory stageof the criminal justice systemto warrant the view that the actions of the police could impugn on the integrity itself. The trial process, on this view, is concernedwith the guilt or the of court innocenceof the accusednot with how evidencehas beenobtained. Moreover, the 'judicial integrity' concept, although it has gained some support in the American jurisdiction, has found very little echo in English reported judgements until has Pattenden very recently. remarked, 11 there is no suggestion in the casesthat the English judiciary think that receiving improperly obtained harm their prestige." (60) evidence will

1. H. Dennis claims to find some support for the "legitimacy of the verdict" theory of exclusion in judicial remarks in the recent cases of Williams v DPP Rv Bailey and Smith, where judgements used the word "legitimate" in connection with certain police for the obtaining of evidence. Dennis conunents, covert procedures

" this tendsto supportthe theory advanced as to the ... ... basis of the discretion to excludeunder Section78 of PACE." (61)

However, the word 'legitimate' could merely be a reference to those covert police judiciary the methods can stomachas opposedto those methodswhich border on the 'oppressive'or 'unfair'. It is too strainedan interpretation of both Williams v DPP and Bailey and Smith to seethose casesas providing some support for either the judicial integrity or the similar theory 'the legitimacy of the verdict' as a justification for the improperly is illegally There Rv the obtained or evidence. also caseof exclusion of Horseferry Road MagistratesCourt ex parte Bennett [19931,House of Lords per Lord

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Lowry whose judgement contains ideas very similar to those of the 'legitimacy theory'. Lord Lowry comments, "The court in order to protect its own process from being degraded and misused, must have the power to stay have before have it only which come and proceedings been made possible by acts which offend the courts law. being to the the contrary rule of conscience as Those acts by providing a morally unacceptable foundation for the exercise of jurisdiction over the if trial taint the suspect proposed and tolerated will mean that the courCsprocess has been abused." (62)

However, Lord Lowry emphasized that this concern to stay proceedings arose from "... wrongful conduct by the executive in an international jealously its the protect own context ... court must process from misuse by the executive. "

The Bennett case involved the deliberate abuse of extradition procedures to bring a into jurisdiction. is English It the therefore not a case on police suspected offender impropriety in the obtaining of evidence for use in criminal proceedings. A stronger is Lords 'legitimacy House Rv Latif the the to theory' recent of case support case of by 17he involved Shahzad (1996). the possible use of entrapment an English and case heroin defendants import into England in to the where they aiding customs officer dismissing in Lord Steyn the appeals commented that entrapment, were arrested. It posed the perennial dilemma. If the courts always refused to stay such proceedings the perception would be that the court condoned criminal conduct and malpractice by law enforcement agencies. That would undermine public bring into justice it in the system and criminal confidence disrepute. On the other hand, if the courts were always to it incur it that the reproach was stay such proceedings, would failing to protect the public from serious crime. The weakboth left positions only one principled extreme nessesof had discretion. " The a solution. court Lord Steyn went on to comment, (63)

"In this casethe issuewas whether despitethe fact that have fair judge the to trial stayed was possible ought a the criminal proceedingson the broaderconsiderations Proceedings justice integrity the criminal system. of of fair be trial was stayednot only where a might impossiblebut also where it would be contrary to the 255

justice integrity in interest the the of criminal public In take trial that place. a casesuch as should a system the present,the judge must weigh in the balancethe in interest ensuringthat thosechargedwith public be grave crimes should tried and the competingpublic interest in not conveying the impressionthat the justified the that the approach end would adopt court the means. In the presentcasethe judge did not err in refusing to stay the proceedings." There are strong echoes of the legitimcy theory for the exclusion of evidence illegally or improperly obtainedin this judgement. Pattenden is right to assert that traditionally a concem that receiving illegally or improperly obtained evidence would taint judicial integrity or the integrity of the has been feature process not a of judicial pronouncements in England. Although it has been argued that S.78 is a wider discretion than the common law discretion this should not carry the implication that the criminal courts have since 1986 adopted the judicial integrity or legitimacy theories as rationales for exclusion. There is certainly no evidence pre PACE that this is so and very little since to judges have implicitly integrity judicial that the the convince adopted or the legitimacy theories as the basis of their decisions to exclude evidence. However, the Wigmorean view that in admitting illegally or improperly obtained is the not condoning the police malpractice did not go unchallenged evidence court in leading in England PACE The the pre era. even evidence scholar of the post war following in Sir Rupert Cross 1979, (the year of Rv the years, made observation San-g)

I am unableto agreewith thosewho maintain that by illegally improperly accepting or obtainedevidencethe court is not condoningthe illegality or impropriety. I think that this is just what it is doing but evenif I am have doubt I that such sophisticatedarguments wrong no as there are in the contrary would be lost on the public. Up to a point the condemnationcan be justified. Sometimes the impropriety is considerablebut the act of condoning it is by to or appearing condone outweighed that of allowing but to a seriouscrime go unpunished, surely the crunch must come at somepoint? I suggestthat it is reachedwhen the judge is forced to the conclusionthat in all the circumstancesthe method of obtaining the evidencecannot be condoned. nese are occasionson which the public interest in the conviction of criminals is outweighedby the interest due law by in the the the public observanceof police. (64) 256

There has been no explicit indication in the casesthat the judicial integrity principle has ever beenactive in the minds of English judges when they have excludedillegally PACE. S. 78 Law Common of or under or unfairly obtained evidence either at Certainly pre PACE English judges have tended to adopt the view that improperly integrity be the of the obtained evidence could admitted without compromising judicial institution or the criminal court. Hence Mirfield's commentthat (65) "Another reasonwhy nothing has beenheard of the (judicial integrity) principle in England may well be that English judges are likely to assumethat they can behaviour satisfactorily avoid condoningunlawful police invoking their power to exclude evidence. without A firm rebuketo the errantpoliceman may be thought dissociate to the court from the unlawful sufficient conduct especiallywhere the rule breacheddoesnot have legal the clearly statusof a rule, as was the case directions. Judges' Rules the with and administrative A rule of a written constitution is of an altogether different order." What might be argued since the passageof S.78 is that admitting the evidence which has been obtained by illegal means and delivering merely a rebuke to the police will not always be satisfactory to safeguard "the fairness of the proceedings" as required be in S. 78 PACE. It that the the under police role of may changing perceptions of introduction justice judicial PACE that the criminal system since of mean a rebuke to the police will not always be enough to secure public confidence in the administration justice. be is by The if judicial the taken that of view may rebuke not accompanied illegally to action exclude obtained evidence in some circumstances then the rebuke is unlikely to carry much weight with the public nor in police culture. This is especially 78 judiciary S. the that so given a power to express moral objection to gives improperly obtained evidence through the exclusion of evidence - see Lord Lane's in Quinn, Rv (66) this comment on point.

An important factor which militates against the attraction of the "judicial integrity" for is that the the trial process (which the public respect principle consideration be by tries to maintain) can seriously undermined the sight of patently guilty principle because of the exclusion of reliable, relevant though men escaping conviction illegally obtained evidence. 'Judicial integrity' is arguably adversely affected when the law over-regularly excludes probative evidence of guilt (because illegally from fails the to public protect criminals. obtained)and theory similar in certain respects to the judicial

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integrity principle has been

developed in EnglancLparticularly by Professor1. H. Dennis, a theory which would lead to the discretionary exclusion of illegally obtained evidence in certain important least in differs from integrity It judicial two the circumstances. principle at ways. First of all the judicial integrity principle seemsto be linked to the context of illegally obtained real evidence. More particularly the judicial integrity principle is limited to evidence obtained in violation of the Fourth Amendment to the U. S. Constitution. The theory developedby 1. H. Dennis, the 'legitimacy of the verdict' theory, is not so limited and has a much wider potential application extending to law hearsay doctrines the of criminal evidence. of confessions, evidence and other Secondly, it is not clear that the judicial integrity principle does take into account the factor is in This interest the a which militates public conviction of guilty offenders. favour is illegally in the which often obtained evidence strongly of admissibility of is The judicial integrity to the principle a principle reliable and cogent proof of guilt. for the exclusion of evidence, it primarily tends to provide a justification for why be from is It trial. the not criminal excluded otherwise probative evidence should inclusionary important it the therefore that clear can successfully accommodate dangerous the offenders. considerationof securing conviction of guilty and perhaps Therefore criticism of the judicial integrity principle to the effect that 'judicial integrity' is also affected by the overready exclusion of illegally obtainedevidenceis integrity judicial the principle. an effective critique of However, the theory propounded by 1. H. Dennis is not as prone to such a criticism. Dennis has argued that "the theory of the legitimacy of the verdict" can take into interest in the the conviction of guilty offenders. This leads to a more public account judicial integrity failure A theory than the to notice this principle. of exclusion subtle between legitimacy difference "the theory" and the 'Judicial integrity" crucial legitimacy lead to theory. A. Ashworth the unjustified criticism of principle could his in "The Criminal Process". Ashworth this to mistake recent work seems make Dennis' (67) theory, asks of "There remains questions as to whether every departure from the rules at the investigative stage can be said to compromise the integrity of the courts ..."

and Ashworth also asks, of one question is whether the concept of integrity ... ... incorporates the social value placed on the conviction of the guilty? "

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Yet Dennis hasmadeit clear that, "Recognising that the verdict serves a number of important law is fimcdons, the constructed so as to ensure that public the verdict will be able to discharge those functions. This both be it that will concerned with trial accuracy means integrity hence the with reliability of evidence and with and These in judgement. the that concerns principle of mean be because this will admitted all relevant evidence should factually promote accuratejudgements... " (68)

Of course, derogations from this basic principle of admissibility are needed for various reasons,e.g. if relevant evidence carries significant risks of unreliability it be fact finder free hand in its evaluation. A confession to the may not safe give a by inducing is interrogation obtained unreliability methods of police a class of With illegally to to evidence correctly subject an exclusionary rule. regard obtained is there real evidence no risk of systematicunreliability with that class of evidence. The public interest in the conviction of the guilty which the legitimacy theory illegally is lead therefore to recogniseswould obtained evidence a position where facie law fact English in Ibis in this area. the coincideswith prima admissible. actual However, on the legitimacy theory there may be circumstanceswhere the exclusion of illegally obtained evidence is necessaryto securethe legitimacy of the verdict. As Dennis has written, "In a case where the illegality was flagrant and deliberate the judge may well decide that such evidence should be be A excluded. seriously undermined guilty verdict might by the lack of state probity and respect for process norms in the way the evidence was obtained." (69)

However, it is not certain that any English judge has reasoned on these lines in any has been in Evidence excluded circumstances very similar to those reported cases. described by Professor Dennis, where the illegality was flagrant and deliberate, e.g. does judge However, DPP (1987). Matto this the that not mean necessarily v see because by Professor Dennis. the the reasons of advocated evidence excluded The protective principle may equally have been present in the minds of judges when done interesting An illegally they excluded obtained evidence. research survey was of judges S. 78 PACE. Court Crown exclude evidence under of the reasons why

71be

judges Leeds Crown very of an admittedly small at sample conclusion reachedafter Court was that, (70) 259

"Ibe judges were unanimousin rejecting the idea of deciding the whether to considering principles when in disputed exclude evidence the exerciseof their discretion." (Ibe ' principles' were the disciplinary, protective and reliability principles.) This researchfinding is a cautionary note for any theorist who seeksto find his own for decisions 78. S. As theory the preferred under a of exclusion as explanation discuss law in England be it 1986 the to starting point since case would unwise without close referenceto the tenns,and purposesof the Police and Criminal Evidence Act 1984. That Act provides the important historical and ideological context for the exerciseof the S.78 discretion. This Act representeda major watershedin the history is English ideological the of policing, changing rationale on which policing accepted in England. This, it is submitted, has substantially affected the willingness of the English judiciary to exclude illegally or improperly obtained evidence under S.78, as well as substantially affecting the willingness of the judiciary to exclude confession be before This the evidence under must considered any abstract same provision. theorising about the rationale for the exclusion of illegally obtained evidence in England canbegin.

Improperly

obtained evidence and covert police operations

In S.78 the criminal courts have a wide ranging provision for the exclusion of has been by illegal, improper evidence which obtained or unfair means. I'he dealing issue illegally the the to of challenge criminal courts of with or unfairly has been greater at present as the traditional problems, rarely obtained evidence from from illegal Kuruma R) (see R (see v evidence an search entrapment, evidence by in Rv Birtles, Ameer (see Rv trickery the evidence obtained police v station , Court, Rv Payne) have been added to in recent years by an increase in the use of involve illegality impropriety investigatory in may methods which or or result covert by is if into those covert gathered methods admitted evidence evidence. unfairness (71) The desirability of a statutory code governing undercover police operations such as

long in RCCP Report. 1981 (72) The to the as ago as adverted was surveillance between PACE the that police powers of suspects and rights settlement political left incomplete is that the to extent operations covert police were outside represents

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the ambit of the statutory scheme establishedin PACE for the conduct of Police interrogation focus In 1981 the the process operations. of public concernwas mainly and the use of "traditional" police powers such as arrest,stop and searchand the entry of premises. 71begrowth in the use of covert operationsby the police in the years for limits Parliament have 1981 the to the to subsequent need urgently consider shown in of permissible police conduct covert operations in order that the fair settlement between police and public should be as complete and comprehensiveas possible. Indeed the House of Lords in Rv Khan repeatedly called upon Parliament to introduce statutory control over the use of surveillance devices by the police. Lord Nolan in Rv Khan commented,(73) "The sole causeof the casecoming to the Houseof Lords lack the was of a statutory systemregulating the use of by devices the police. The absenceof such surveillance a systemseemedastonishing,the more so in view of the framework had which statutory governedthe use of such devicesby the security servicesince 1989and the interception of communicationsby the police as well as by other agenciessince 1985. Counselfor the Crown had indicated on instructions that the government legislation introduce to planned covering the matter in the next sessionof Parliament."

A statutory system for authorisation of the use of surveillance devices by the police by introduced The Police Act 1997, sections 91-108, although the system of was does by 97(3): "This Section is S. not apply to an authorisation authorization undercut is believes Yet it " that this the the case one of urgency. person who gives where designed the of police conduct outside police station statute only covers a small part for for is investigatory there to gather evidence; a statutory code still need covert practices generally. However, even if there was a statutory code for covert investigative practices the judiciary would still have the problem of deciding what the consequencesof a breach be. If investigated less by Code the the the offence was of a serious police would of be inadmissible if it to the there was a then evidence relatively easy rule would nature "significant and substantial" breach of the Code by the police. If however the offence likely it is judges be that then tempted to would some was of a very grave nature despite breach Code. Moreover it Code if the the reliable the was of a evidence adn-dt for covert investigative practices is unlikely to be comprehensive for innovations in undercover techniques are always a possibility.

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However, a statutory code would prevent the law in this area from being "police led", that is the judiciary merely legitimating through the admissionof evidenceinnovative covert investigative practices by the police. A statutory code would stake out in advancewhat is and what is not acceptablepolice conduct in covert investigations,at least as a matter of principle if not precisedetail. It is not proposedto offer a comprehensiveaccountof why there has beenan increase in the use of covert methods of investigation recently, methods which may involve illegality (trespassand damageto property as in Rv Kh4n) or impropriety (as in Rv Hall, Rv Stagg but some observationswill be made in an attempt to put the use of S.78 in its context. The first point to make is that PACE and the Codes of Practice have made the obtaining of confessionsthrough interrogation a more difficult process than under the old regime governedby the Judges'Rules. Not only has the obtai ig of a confession become harder (e.g. becausethe percentageof suspectswho see a has from dramatically from Judges' Rules the the solicitor risen a situation under fraction mere of suspectsto about 25% of suspectsunder the PACE regime) and there is a strong link betweenreceiving legal advice and not making a confession(74) but the courts are more willing to exclude a confessionwhere there is impropriety in the being detected have impropriety Moreover, the obtaining of a confession. chancesof improved becauseof the recording provisions and the presenceof legal advisors. It may be that covert investigative techniques are being used because formal interrogation has failed to produce evidence or because it is anticipated that formal interrogation is likely to be unsuccessful in producing incriminating evidence. In Rv Khan, formal interrogation under PACE had failed to elicit a confession from a importing heroin UK. into It listening the that that suspect suspectedof was at stage a device was fitted to a private house which the suspect frequented. The suspecfs damaging admissions in the house were recorded by the device and the Court of Appeal and the House of Lords held the evidence rightly admitted. In Rv Hall (as failed formal had interrogation in Rv Stagg) to produce a confession to murder also incriminating to the obtain an statement, the police set up a covert operation so by judge. "unfair" the trial operation was stigmatized as

Empirical supportfor the claim that PACE has madeobtaining a confessionharder for Rules is by Judges' Home Office the than regime the police provided a under Research Study by David Brown in 1991, Chapter 7 "Detectives' views of PACE"

(75)

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"T'heview was generallyheld that interrogation was not before investigation important as a part of criminal as PACE and that fewer confessionswere obtainedowing to increasedconstraints."

However, accordingto Brown, "The dataclearly show that interrogation still occupiesan important place in the detectives'armoury."

However, the police have come in for widespreadinformed criticism becauseof an over relianceon interrogation in the past. As the RCCJ recognised,(76) "It is now generally accepted that confessions have hitherto taken too central a role in police investigations. " The move towards covert techniques may be due in part to a reaction by the police towards such criticism of an overdependence,on confession evidence.

'Me second point explaining the increase in the use of covert operations is that such from "crime The Audit methods can make sense an efficiency control" point of view. Commission ("Helping with Enquiries") in 1993 recommended in a highly influential in 'prolific' that target the community and seek to collect the offenders report police evidence and apprehend them there rather than relying on "old style 1970s" detective him to tip off about a suspect, arrest and then take the suspect to the work receive a for be interrogation. There might not enough evidence to charge the police station in interrogation and any case the police may not actually arrest the suspect even after If the small number of prolific offenders (who with regard to most prolific offenders. burglary or street robbery commit most of the recorded certain crimes such as be in 'targeted' the community then this may make a significant offences) can difference to the detection and prevention of certain crimes. The operation which be DPP Williams (77) in the viewed as an attempt to trap case of v can resulted interrogation "in than the rather relying on community" of a suspect prolific offenders Williams In the to offences. a van was commission of obtain evidence about as a way left unlocked with dummy cartons of cigarettes in the back in an area of a town with a high from for 'Targeting' includes theft prevalence of vehicles. a reputation identifying areas of high crime rates for particular offences. Two individuals who held Appeal The Court that the temptation to were prosecuted. of police succumbed

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tactic was "legitimate" and the evidence was held to be rightly admitted. If the two individuals caught had been 'prolific' thieves no doubt the police tactics would not have received the level of criticism from commentatorsthat the case attracted (for example of such criticism seeG. Robertson(78)). Ibe use of proactive methodsmay be a responseto press criticism in recent years about the prevalenceof low clear-up rates.

The third point to make explaft-fingthe increase in the use of covert investigatory is methods the influence of successfulAmerican covert investigatory techniques. The methods employed in Rv Christou G 992) (a "shady" jewellers shop which received stolen goods - actually a police trap) and Williams v DPP were copied from similar operations used by the police in the U. S.A. It is also the case as Lustgarten (79) points out, that certain proactive police techniques may be a direct product of the content of the substantive criminal law: "Certain offences require measures of

enforcement that are inherently and unavoidably oppressive". The central example Lustgartenusesis the prohibition on the possessionof drugs (80) it... criminalisation of drugs use has certain inevitable enforcement corollaries; a society which chose to decriminalise drugs would have a very different sort force. " of police

Whilst this may be overstated, Lustgarten has a valuable point. The crucial proof issue with regard to drugs offences is showing possession of or distribution of the prohibited drugs. However, the usual method of crime detection, information from the victim of crime, is lacking in drugs cases because drugs offences received tend to be in a sense "victimless". Therefore, the police have to obtain evidence that the defendant was either caught in possession of the drugs or secretly observed taking possession of them.

Lustgarten points out that the only effective means of

is by following this the establishing use of one or more of methods: & 0

f6mis of surveillance wiretapping or other in illegal transactions which can readily participation of undercover agents

into entrapment shade informers if kept in bounds be criminality whose own of may tacitly use condoned 0

involves invasion property which serious searchof personsor of privacy.

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is the Lustgarten concludes that police methods "oppressive of civil liberties ... inevitable price society pays for the creation of such offences; they cannot be in in has drug increased If enforced otherwise". society recent years so might abuse level increased of criminality. police use of proactive methodsto counter that The increase and variety of these operations are giving the criminal courts a new beyond improperly in field illegally the usual challenge the or obtained evidence of types of case involving illegal searches,entrapment and police tricks in the police limited formerly Police the trickery outside mainly station. police station which was to entrapment has expanded into various "'manna from heaven" and "sting" operations. J. Morton (8 1) comments on one aspect of this,

"Nowadayspolice surveillanceand infiltration hasbecomean industry in itself with high technology gadgetryemployed for electronic eavesdropping." There is an irony here for if the police are using these techniques as a partial for dependence interrogation in replacement on response to public concerns about an over reliance on confession evidence then some of these proactive techniques, bugging devices, intrusive to especially surveillance and are potentially more individual liberty than interrogation in the police station. It is the case that evidence does danger by bugs the not present a of obtained use of electronic surveillance and is in this sense a superior source of evidence than confessions. unreliability and However, proactive police investigatory techniques can raise acute civil liberties listening devices in Khan, Rv are problems concerning privacy especially when as fixed to private residences.

The casespost PACE An early indication that S.78 is wider than the common law discretion was provided by the Divisional Court judgement in Matto v DPP (1987) (82). In this case a breath for driving the test relevant with excess alcohol was quashed where conviction

in faith. bad in by their the powers police when acting excessof was administered The defendant,who drove his car from a road on to private property was followed by informed because Tbey him in in that the vehicle. of manner police officers a police because had he driving limit been had he the the road exceeded and on speed which

265

he was required to take a breath test and if he failed the test or refused to take it he might be arrested. The defendantthen said that the property was private and that the licence implied knew By their the that time that police officers police could not act. to enter the property had beenterniinated. Tberefore they acted in bad faith, and statedthat they knew what they were doing and if the suspectwas wrongfully arrestedhe could sue the police. The appellantwent to the police car where he underwent a breath test which proved positive. He underwent held L. J. further Woolf breath the test police station which also proved positive. at a that, "The language of S.78 (1) directs the court to have regard to the circumstances in which the evidence was obtained. Therefore it is certainly implicit in the subsection that there can be circumstances in which the evidence was have it such an adverse effect on obtained which makes the fairness of the proceedings that the court ought not to it. " admit

Woolf L. J. continued, I am satisfied that in this case exceptionally there could be had if Crown Court the properly circumstances where directed themselves they could or might have exercised a discretion to refuse to admit the breath-alcohol analysis in because I I that that to conclusion come evidence. emphasize Fides. " finding to they the came of inala which of It is not clear that the evidence in Matto v DPP could have been excluded under the by in In Rv House Lords Rv Sang. interpreted discretion law the of as common Payne (1963), one of the few instances of appellate court use of the Kuruma , discretion, real evidence of a high probative value as in Matto v DPP was held to have been wrongly admitted. In Rv Payne in the police station the accused had been by by into the tricked misrepresentation police. a sample a providing

Bad faith on the part of the police was not alleged but the Court of Appeal held that 'fairness' required the exclusion of the evidence. Paynewas explained in Rv Sangas infringement the involving of suspect's privilege against selfunfair an a case ipsum Matto In debet (the incrimination se no referencewas principle). prodere nemo the against self-incrimination, rather emphasis of the privilege to suspect's made faith bad This judgement J. 's the Woolf L. exerciseof police power. suggestsa was on for improperly discretion justification in the to the exclude obtained emphasis of shift 266

evidencefrom a concernfocused on the suspect'sprivilege against self-incrimination to a concemfocused on the abuse,particularly deliberateabuseof police power in the be dictum in Quinn Lane's Rv (1990) (Lord gathering of evidence should remembered here - see below). The abuse of police power in the gathering of evidencewas not suggestedat common law as a reasonto exclude evidenceobtained improperly. The emphasisgiven to deliberate misuse of police power in Matto perhapsreflects judicial acknowledgementthat in the post PACE era the criminal courts cannot indifferent deliberate to the remain abuseof state power in the gathering of evidence for use in court. Lord Lane commentedin Rv Ouinn (1990) that proceedingsmay becomeunfair, if amongstother factors, " there hasbeenan abuseof process,e.g. because ... has been in deliberate breachof evidence obtained procedureslaid down in an official Code of Practice."

This reference to deliberate breach of procedures which can lead to proceedings becoming unfair if the evidenceso obtained is admitted suggeststhat the focus of the discretion is law had been the exclusionary not, as at common suspect on whether his tricked unfairly out of privilege against self-incrimination to produce evidence againsthimself, but rather the focus is on the abuseof police power and particularly faith for bad violation of procedures the fair conduct of criminal investigations. It on be will rememberedthat in Rv Alladice Lord Lane commented that if the police breachedS.58 of PACE in bad faith then it would be 'easy'to exclude a confessionso obtained under S.78. Again this suggeststhat the rationale and purpose of S.78 is different to that of the common.law discretion to exclude a confession under the Judges' Rules. It is the submission of this thesis that one important reason for this by is ideological in in 78, judiciary S. the their the change, recognised use of shift in justice PACE the to the official attitudes police role criminal system which represents. Matto v DPP has been followed in Sharpe v DPP (1992) (83) which similarly faith breath in bad that test case possible and use of police concerned a positive denied finding bad faith in because J. Buckley However, that that case of of a power.

discretion in S. 78 that the the the evidence of police obtaining could only part of on be exercised one way, i. e. to exclude the evidence. This is perfectly in line with faith discretion bad judge be 78 S. the a on confers may a potent and whilst principle. 267

factor in favour of excluding evidence and a factor which the trial judge or bad faith dictate does Matto (see magistrates must consider not exclusion of evidence. It has been often assertedby the courts that 'fairness of the proceedings' in S.78 includes 'fairness to the Crown. Crown interest in the prosecution of offenders on reliable probative evidence is a consideration which must also be consideredunder S.78. If it was acceptedthat a finding of bad faith on the part of the police always led to exclusion of evidencethen it is arguablethat this leavesno place for the interestsof the Crown in those casesinvolving bad faith by the police. If the police breacheda in bad faith insignificant PACE relatively provision of and obtainedreliable evidence be he decided in judge if trial then a of guilt perhaps would correct a serious offence to admit the evidencerather than excludeit. However, it should not be thought that the existence of bad faith is required before a 78. Rv S. Samuel DPP McGladrigan (1988) and v judge can exclude evidence under (1991) (84) establish that a finding of mala fides is not required before evidence can be excluded under S.78.

In McGladri-Ranit was statedby the Divisional Court that with regard to evidenceof a breath test that, positive it albeit there was no finding of mala fides on behalf ... of the police the casewould not on that ground alone be remitted with a direction to convict."

However, a direction to convict was ordered on other grounds. The cases discussed above, Matto v DPP Sharpe v DPP, McGladrigan v DPP are all hence less R. involving traffic and relatively offences road serious offences. cases

Pattenden'sremark on the exerciseof the common law discretion is worth noting here, "It is surely no accident that the reported instances of the discretionary exclusion of non confession evidence have involved road traffic offences. Where the accused was (a the evidence was with rape admitted" reference to charged Rv Apicella (1985)) (85)

As a matter of record non confessional evidence was excluded in the 268

drugs/entrapment cases of Rv

Ameer and Rv

Burnett and in the counterfeit

first instance However, Foulder. (86) these Rv were currency/entrapment case of decisions only. As a matter of appellate exclusion of illegally or improperly obtained Offence" Traffic law "Road the caseswere the only ones where evidence at common

the Divisional Court said evidence should have been excluded. In this context the decision of the Court of Appeal in Rv Nathaniel (1995) is of great significance. If as a matter of unstated policy, seriousness of the offence was taken into account in

deciding whether to exclude evidenceobtained improperly, at common law then this factor has received explicit recognition since the passageof S.78. In Rv Latif and Shahzad (1994) (87), Court of Appeal, Lord Justice Staughton giving the judgement of the court, made the f6flowing remark on the S.78 issue,

"The Parliament that enacted S.78 of the Police and Criminal Evidence Act 1984 for the purpose of protecting the innocent have been behalf hear invoked it to might surprised of an on importer of heroin worth X3.2 million into this country in him to the order exclude evidence against on the ground that he was encouraged by an agent of the British government. "

The Court of Appeal went on to consider the S.78 question but in the light of this it issue is held have the the to that not surprising opening comment on evidence was been rightly admitted. Professor J. C. Smith comments that the above comment of Lord Justice Staughton, " is difficult to reconcile with many of the decisions on ... Section 78 which treat it as protecting everyone guilty or innocent from conviction upon an "unfair" trial. 71he doubt alleged unfairness may cast no whatever upon the but the require the exclusion of the accused guilt of it has been if the quashing of a conviction evidence or heroin Importers but of are very wicked admitted. so are 8) " (8 rapists and robbers. murders, many

It is unfortunate that the Court of Appeal in Latif refers to the purpose of S.78 as /Iprotecting the innocent". It is true that S.78 does have that purpose and has been is to the which not to up evidence police standard of reliability required exclude used by the courts, e.g. see Rv Na-gah(1991) where identification evidence was excluded by the Court of Appeal because the police had substituted their own procedure for an identification parade over the requirements of Code of Practice D on identification

269

be Also to evidence. properly see the cases requiring confession evidence has been by 78 Section Canale. Rv Keen Rv the courts authenticated, e.g. used in that context to protect the court and defendant from fabricated police evidence of a confession.

However, S.78 has a role independent of protecting the innocent. S.78 has been used to exclude very reliable evidence of guilt as in Matto v DPP or Rv Nathaniel if the because "fairness the the threatens the of abuse adn-dssionof of proceedings" evidence in of police power the obtaining of the evidence. However, the Court of Appeal in Latif is right to make reference to the gravity of the drug. importation 'Fairness of the proceedings' under S.78 A offence of a class fairness to to the Crown as well as the accused. refers Given that S.78 takes into account the interest of the Crown as well as the defence it is arguable that the more serious the offence the heavier is the weight of Crown interests in favour of inclusion of the evidence. There is a greater public interest in the conviction of persons guilty of serious crimes than the public interest in the conviction of those guilty of less serious crimes. However, merely because the offence is a very serious one this does not mean that in be Latif. Court Appeal the of commented evidence will automatically admitted, as

" the question remains in terms of S.78 whether having ... including the circumstances to the circumstances regard all in which the evidence was obtained the admission of the fairness have the such an adverse effect on evidence would it. " to the the that court ought not admit proceedings of

The case of Rv Stagg (89) (a case concerning an horrific and much publicized for it in is this respect suggeststhat whatever the nature of the murder) significant judiciary to the there which remain unacceptable are certain police methods offence discretion S. 78. The invite the the under prosecution argued exclusionary use of and in the that the undercover operation was only route available order to test the in fantasize that to a way was consistent with a psychological accused'scapacity Nevertheless judge been Ognall I had the trial the murderer. on that compiled profile held that if that route led the police into the area of impropriety the evidence was inadniissible. 270

The seriousnessof the offence as a factor to be taken into accountin deciding whether to admit unfairly or illegally obtained evidence under S.78 received even more implicit recognition in Rv Khan where it was held by the Lord Chief Justice Lord Taylor (90),

11 on the facts the invasion of privacy with the attendant ... trespassand damagewas outweighedby other considerations in had fact the that the police acted accordancewith such as the relevant Home Office guidelinesand that the criminal " investigation conduct under was of a seriousnature.

From the judgement of the Court of Appeal in Khan emphasis was again laid on the

fact that, it what was under investigation was a type of criminal ... " conduct of great gravity,,

favouring factor iflegaRy is the that this admission of or unlawfuRY obtained a and has decision in Rv House Lords Court 'Me Appeal the the of upheld of of evidence. Khan. Lord Nolan commented,

"It would be a strangereflection on our law if a man who had admittedhis participation in the illegal importation heroin large have his of a quantity of should conviction his been had invaded. " (9 1) that the aside on ground privacy set

Again a recognition that the gravity of the offence was a relevant factor under the

S.78 discretion. It could be suggestedthat the more serious the offence the less likely should the in impropriety it be to obtaining evidenceof and therefore overlook any police courts likely impropriety be the than to gather evidence same police exclusion should more less seriousoffence. about a The argument is that the conviction and puni-4anent of persons accused of serious justification less than the conviction of persons of greater serious crimes requires be less 'tainted' 1herefore trial the to should criminal willing accept evidence crimes.

less However, has than to this prove serious offences. to prove seriousoffences view 271

not been adoptedin Australia, seeBunning v Cross (1978)1(92)nor now in England. It is surely common sensethat there is a greater public interest in the conviction of faith less in in in the than. that offenders serious crimes serious crimes and public criminal justice system is likely to be shakenif highly probative real evidence was for in, readily excluded examplea murder caseor a rape case. However, there are circumstanceswhere even highly probative real evidence in a held is be to serious case rightly excludedbecauseof police breach of proceduresin obtaining that evidence:seeRv Nathaniel. A lack of probity by the police in the collection of evidence for use at trial can so fairness the upset of the proceedings that the evidence should be excluded from trial even where that evidence is highly probative of the guilt of the defendant with regard to a serious offence.

272

Footnotes to Chapter 7 Illeizaliv Obtained Evidence

(1)

Kuruma vR [1955] AC 197 [1955] AH ER 236.

Perhaps there is an important distinction between police iflegality and by break Where the the the evidence unfairly obtained police. police actuaUy law to obtain evidence the case for excluding that evidence in discretion is a in legitimacy The than the stronger one mere unfairness obtaining evidence. is into by breaches law the the they of system called more question police of by in to than meant uphold are mere unfairness the obtaining of evidence. (2)

Rv Khan [ 1994] 4 AR ER 426.

(3)

Lawrie v Muir (1950) SLT 37.

(4)

Mapp v Ohio (1961) 367 US 656.

(5)

U. S. v Leon (1984) 468 US 897.

(6)

Rv Leatham (1861) 8 Cox CC 498.

(7)

Jones v Owen (1870) 34 JP 759. Rv Warickshall (1783) 1 Leach 263.

(9)

G. RobertsonQ.C. "Freedom,the individual and the Law" at p.38.

(10)

Rv Cooke [199511 Cr. App. R. 318. See also the opinion of the court in DPP discretion discretion" 78 "new McGladrigan Section that was a and not v law. the merely a restatement of common

(11)

RvChalldey[199812Cr.

(12)

A. Ashworth, "'Excluding Evidence as Protecting Rights", Criminal Law Review [ 1977] p.729 note 27.

App. R. 79C. A.

Lord Scarman, House of Lords, 11 July 1984, Hansard p.932. (14)

Rv Sang [1979] 2 All ER 1272 at p. 1230. Rv Christou and Wright [1992] 4 All ER 559 at p.564.

(16)

Rv Mackintosh (1983) 76 Cr. App. Rep. 177 CA.

(17)

Lord Taylor quoted in Joshua Rozenberg, "The Searchfor Justice" 1994 at 5. p.

(18)

P. Devlin, "Ibe Judge" 1979 at p.25.

(19)

Rv MiRs and Lemon [ 19471KB 297 [1946] 2 All ER 776 quoted in Cross 7th Edition 1990 at p.487.

(20)

Rv Sang [197912AUER46atp.

62 CA.

273

1977,

(21)

Law Commission Report No. 83 "Defences of General Application" Cbapter 5.

(22)

G. RobertsonQ.C. Entrapmentevidence: Manna from Heaven or Fruit of the PoisonedTree?" [1994] Criminal Law Review 805 at p.816.

(23)

Rv Birtles (1969) 1 Cr. App. R. 1047.

(24)

Rv Foulder 19731Crim. LR 45. Rv Bumett 19731Crim. LR 748 Rv Ameer f 1977] Crim. LR 104.

(25)

Lord Diplockin Rv Sang [1979] 2 All ER 1222at p. 1230.

(26)

Leon Brittan, 29 October 1984 House of Commons Debates, Hansard p. 10121.

(27)

House of Lords Debates 31st July 1984 (Lord Scarman). Lord Scannan!s own from its ambit. S.78 reverse onus exclusionary rule excluded confessions which was substituted at a very late stage for it is of course a discretionary does to power exclude and apply to confessions, see Rv Mason [198713 All ER 48 1.

(28)

Rv Christou and Wright [1992] 4 AH ER 559 at p.564.

(29)

Rv Quinn (1990) quoted in D. Birch "Excluding Evidence from Entrapment" f 19941,Vol. 47, Current Legal Problems at p. 92.

(30)

D. Birch "Excluding Evidence from Entrapment: What is a fair cop?" [1994], Vol. 47, Current Legal Problems, at p.92.

(31)

Rv Apicefla (1985) 82 Cr. App. Rep. 295.

(32)

Rv Nathaniel [1995] 2 Cr. App. R. 565. For further discussions of Rv Nathaniel see F. Munday "Section 78 of PACE and improperly Obtained Evidence" (1995) 159 Justice of the Peace and Local Government Law, at Munday's Nathaniel, 78 has 663 that. "one S. p. and note comment senseswith truly come of age. In resounding fashion the case disposes of any lingering does the that section not expand the old common law discretion. It misgivings is a powerful precedent epitomi2:ing the view that evidence of any variety by in a manner which the court adjudges unfair runs the real risk which comes 668. of exclusiow%,at p.

(33)

Rv Payne (1963) 47 Cr. App. R. 122.

(34)

Callis v Gimn [1963] 3 All ER 677.

(35)

R. Pattenden,"Judicial Discretion and Criminal Litigation" 1990,p.269.

(36)

NL Gelowitz, "Section 78 of the Police and Criminal Evidence Act 1984: Nfiddle Ground or No Man!s Land?" [ 19901106 Law Quarterly Review 327.

(37)

D. Birch [1995] Criminal Law Review Commentary onRv Cooke, p. 49.

(38)

Matto v DPP (1987) RTR 337.

(38b) Rv Khan [1997] Crim. L. R. 508.

274

(38c) L H. Dennis "'Ihe Law of Evidence" 1999,pp.72-73. (39)

P. G. Polyviou, "MegaUy Obtained Evidence and Rv Sang" in "Crime, Proof Cross" by in Memory Sir Rupert C. 1981, Essays Punishment: edited of and Tapperat p.226.

(40)

A. Ashworth, "Excluding Evidence as Protecting Rights" [1977] Criminal Law Review 723 at p. 724. Rv Sang [1979] 2AHER46atp.

62.

(42)

J. H. Wigmore, "Using Evidence Obtained by Megal Search and Seizure" (1922) Vol. 8, American Bar Association Journal,p.479 at p.484.

(43)

D. Oaks, "Studying the exclusionary rule in search and seizure" (1970) 37 University of Chicago Law Review 665 at p. 722.

(44)

G. Robertson, "Freedom, 71heIndividual and the Law" 1993, p.46. Clayton in Tomlinson "Police " Actions" 1997, 10 their and recent work comment years has beyond the rare ago such actions were relatively position changed ... have become late Civil 1980s. the the police recognition since actions against litigation This is important " in (vii). an area of general practice. at p. contrast to the pre PACE era, as Dixon. notes: "In the 1950s and 1960s, courts were being the to policy not to unsympathetic civil actions against police, discourage police from attempting to do their duty". at p. 146 of "Law in Policing: Legal Regulation and Police Practices" 1997.

(45)

Rv Delaney (1989) 88 Cr. App. R. 338 at p. 341.

(46)

Rv Canale [ 1990] 2 All ER 187 at p. 190 and p. 192.

(47)

A. Ashworth, "Excluding Evidence as Protecting Rights [1977] Criminal Law Review 723 at p. 725.

(48)

Rv Smurthwaite [199411 All ER 898 at p. 902.

(49)

DPP v Marshall [1988] 3 All ER 685, Rv Underhifl (1979) 1 Cr. App. R. (s) 270.

(50)

A. Ashworth, "Concepts of Criminal Justice" [1979] Criminal Law Review 412 at p.423.

(51)

A. Ashworth, "Excluding Evidence as Protecting Rights" [19771 Criminal Law Review 723 at p.732.

(52)

People v Cahan (1955) 282 P.2d. 905.

(53)

W. Stuntz, "The American Exclusionary Rule and Defendants' Changing Rights" [ 1989] Criminal Law Review, p. 117 at p. 118-119.

(54)

A. A. S. Zuckerman, "Illegally Obtained Evidence: discretion as a guardianof legitimacy" (1987) 40 Current Legal Problems,55 at p.56.

(55)

Calcraft v Guest [1898] 1 QB 759.

(56)

1. H. Dennis, "Reconstructing the Law of Criminal Evidence" [1989] Vol. 42, Current Legal Problems, p.21 at pp.36-38.

275

V

(57)

Law 57 Washington " Rule (1982) Exclusionary "The Morris, Arval A. ... Review, p.647.

(58)

ibid at pp. 650-65 1.

(59)

J. H. Wigmore, "Using Evidence Obtained by Megal Search and Seizure" (1922) Vol. 8, American Bar Association Journal at p.479.

(60)

R. Pattenden,"Judicial Discretion and Criminal Litigation" 1990at p.270.

(61)

1. H. Dennis, "Instrumental Protection, Human Right or Functional necessity? Reassessing the Privilege against self-incrimination" [1995] Cambridge Law Journal 342 at p. 365.

(62)

Rv Horseferry Road Magistrates Court ex parte Bemett [ 1993j2 WLR 90.

(63)

Rv Latif and Shahzad [1996] 1 All ER 353.

(64)

Sir Rupert Cross, "The Forensic Crunch" (1979) Northem Ireland Legal Quarterly, Vol. 30 No. 4 at p.298.

(65)

P. Mirfleld., "Confessions" 1985, pp. 77-78.

(66)

Rv Quinn [1990] Crim. LR581.

(67)

A. Ashworth, "The Criminal Process" 1994, p. 32 and at p. 302.

(68)

1. H. Dennis, "Reconstructing the Law of Criminal Evidence" [1989] Vol. 42, Current Legal Problems, 21 at p. 37.

(69)

1. H. Dennis, "Instrumental Protection, Human Rights or Functional Necessity? Reassessing the Privilege against self-incrimination" [1995] Cambridge Law Journal 342 at p. 360.

(70)

Mary Hunter, "Judicial Discretion: Section 78 in Practice" [1994] Criminal Law Review, p.588.

(71)

human Covert Policing "Under Surveillance: 1998. rights and standards" see A Report by "Justice", at p. 7, "Modem policing no longer relies solely or detection, hope that witnesses will come the mainly on confession and forward. Increasingly, police, customs and other law enforcement agencies in the UK and other countries are tuming to proactive, intelligence-led policing methods."

(72)

RCCP (198 1) at p. 39 paragraph 3.57.

(73)

Rv Khan [1996] 3 AIIER289

(74)

J. Pearse and G. GudJonsson, "Police Interviewing and Legal Representation: A field study". The Journal of Forensic Psychiatry, May 1997, Vol. 8, pp.200208. "Highly significant relationships were found between the presence of a legal advisor and a suspect's decision not to confess", at p. 200.

(75)

David Brown, "Investigating Burglary: the effect of PACE" (1991) Home Office Research Study No. 123, at Chapter 7,,p. 73.

(76)

RCCJ Report 1993, p.64 paragraph 67.

H. L.

276

(77)

Williams v DPP [ 199312 All ER 365. The Audit Commission published their led intelligence Two targeting in 1993. suspected operations major report Eagle Eye" "Operation in London followed agadmststreet criminals soon burglars. Obviously Bee" Bumble "Operation against suspected robbers and by limits important the targeting the police of there are permissibility of on has Stober high in recently provided a useful crime area. people a hypothetical scenario to illustrate the limits of permissible police uwgeting; imagine an areain a city known to have high levels of illegal narcotics activity by in "To is think that the targeted police an undercover operation: which innocent shopper,diner, pedestrian,civil servant or businessmanmay not only be accostedby the odd drug dealer but also by police agents of, the state distinction them that and at any area without offering or anyone else within time of day or night the opportunity to commit an offence, appean to be decency. " to the clearly offensive communitys senseof Quoted in A L-T Choo, "Abuse of Process and Judicial Stays of Criminal Proceedings1993,at p. 164.

(78)

See G. Robertson, "Freedorn, the Individual and the Law" 1993 at p.63.

(79)

Lawrence Lustgarten, "The Police and the Substantive Criminal Law' (1987) British Journal of Criminology Vol. 27 No. 1, p.23 at p.30.

(80)

ibid at P.24 and P.38.

(81)

J. Morton "Supergrasses and Informers: An Informal History of Undercover Police work" 1995, at p.xiii. For further recent discussion of undercover policing see C. Fijnaut and G. Marx "Undercover: Police Surveilimce in Comparative Perspective" 1995., and essays in that volume by D. Hobbs on hooligans Football in UK M. 1xvi the undercover operations against and on undercover operations and white collar crime in the UK. Also note G. Marx's has become bero" "cultural in that the comment undercover policeman a Western societies. Michael Levi: "Covert Policing and the Investigation of fraud: Experience The English in International Context", p-195 in organised Fijnaut and G. Marx. G. Armstrong and D. Hobbs "High Tackles and Professional Fouts: The Policing of Soccer Hooliganism" p. 175 in FklWautand Marx.

(82)

Matto v DPP [1987] R.T. R., 337 at p. 346 D. C.

(83)

Sharpe v DPP [1993] R.T. R. 392 at p. 399.

(84)

DPP v McGladrigan [1991] R.T. R. 297 D. C.

(85)

R. Pattenden."Judicial Discretion and Criminal Litigatiow' 1990, at p.269.

(86)

Rv Ameer [ 1977] Crim. L. R. 104. Rv Burnett [1973] Crim. L. R. 748. R. v Foulder [1973] Crim. L. R. 45.

(87)

Rv Latif and Shahzad [1994] CrirrL L. R. at p. 750.

(88)

[ 1994] Criminal Law Review at p. 752.

(89)

Rv Stagg, Central Criminal Court 14th September 1994, unreported (Ognall J.). Transcript of the ruling of the trial judge in the possession of the aulhor.

(90)

Rv Khan [ 1994] 4 All ER 426 at p.433.

277

(91)

Rv Khan [1996] 3 AIIER289

(92)

Bunning v Cross [1978] 141 CLR54 [1978119ALR641.

H. L.

278

CHAPTER 8 ENTRAPMENT

Definition Before an analysis is conductedof the topic, a brief summary will be given defining entrapment and seeking to distinguish that concept from the concept of a trap. Entrapmentin the strict senseof the word describescircumstanceswhere a personhas been induced to commit an offence which he would not have committed but for the inducement. 'I'he 1929 Report of the Royal Commission on Police Powers describes an agentprovocateur as, it a person who entices another to commit an express ... breach of the law which he would not otherwise have him in inform then to committed and proceeds against respect of such an offence. " (1)

However, the term /entrapment' can, as Dennis points out (2) be used with varying shadesof meaning.

The distinction between entrapment and trap is well illustrated by the following from for judgment in Court East Waniiko Appeal Africa the the quotation of v of Reginam (3). Entrapment induces the commission of an offence that would not has have been to that trap seeks obtain evidence of an offence otherwise conunitted; a been been "laid The Court East Appeal Africa on" conunitted. of of or even already said, "It is clear that to act as an agent provocateur is never justifiable: but this situation arises in its true form only if the accused would never have committed or attempted to commit the crime in question but for the encouragement from detection Apart the mere of crime already of agent. first be two types there committed may other of case; infonnation likely have is that the police a crime where to be committed and conceal themselves with a view to its obtaining evidence of commission, and secondly where it appears that the offence would in any event be committed when opportunity arose and the police provided an These both, it arranged opportunity. are as seems to us, in cases which the use of a trap may be legitimate. "

279

However, in the foHowing discussion 'entrapment'wiU be used in a wider senseto include not only the situation where a police officer or his agent induces the have been but that committed, also would not otherwise commission of an offence includes the situation where the police or their agentsinduce a suspectto commit a fresh offence in a situation where the suspectis engagedin continuing or ongoing criminal activities.

Introduction The issues surrounding the law on entrapment merit a separate discussion from the law on illegally or improperly obtained evidence for the basic reason that whereas forms by impropriety the police in the pre-trial phase can be viewed as other of has been that merely methods of collecting evidence about an offence already by in the the the causes commission of crime committed, entrapment contrast between impropriety, The the relationship police namely entrapment and accused. direct dramatic is in therefore the the than and any conviction of accused a more one forms of police impropriety such as an unlawful search or undue case of other pressure on the suspect to obtain a confession. The crucial point about entrapment in its narrowest sense is that the accused would not face the possibility of criminal him had if the police not encouraged the commission of an proceedings against he have forms Other would not otherwise offence which committed. of police impropriety such as unlawful search or oppressive interrogation leave untouched the fact that the accused has committed a criminal offence of his own volition.

Indeed this crucial distinction between entrapment and other forms of police impropriety has led to some commentators,notably ProfessorChoo, to argue that the different from law be to the proof with regard of entrapment should proof responseof forms impropriety in Choo (4) that to gathering evidence. argues of police of other inadequate judicial is the responseto the evidence of agentsprovocateurs an exclude directed is not at the central problems of entrapment since such exclusion for in a caseof entrapmentthe actual commission.of the crime and not consideration been fruit be having item a regarded as of the police of evidence can merely an impropriety. As a consequence Choo, argues (5),

280

i

/I what is required is that proof of entrapmentmust lead *" automatically to a stay of the proceedingsas an abuseof the processof the court." This as an unqualified statementýis too strong since as we shall observe,entrapment can sometimes be justified as a legitimate investigatory tool and indeed has been by the English courts. Significantly Choo has more recently recognised as such written that (6) "... it is strongly arguable that improper entrapment should lead automatically to a stay of the proceedings." This is a clear recognition that entrapment is sometimes legitimate as a police method of investigation.

The Historical Back2round The use of entrapment to obtain convictions

is not solely a modem phenomenon fore law has the the technique to although use of entrapment as a enforcement come

recently

in England

increased investigative the given use of covert

techniques

by in In the the eighteenth and early nineteenth century police generally recent years. the fact that most prosecutions were private prosecutions made the criminal courts from One individuals benefited to open private uses and abuses. group of private who the system of private prosecution was the class of men known as thief-takers; thief-takers

individuals were private

these

who made a profession out of seekingC- and

By late the thieves. to securing convictions of mid nineteenth century this task of have been by but in the thieves convicting would undertaken professional police an earlier age "thief-takers" prospered. However, as Hay and Snyder comment, (7) " thief-takers also enticed beginners into crime in order ...betray to them or secured convictions of innocent men and women through wholly perjured testimony. "

The rewards offered by private individuals or Associations for the Prosecution of Felons made the creation of criminals through entrapment an attractive possibility for form has informers in This the who a modem counterpart of police thief-takers. vice be informed that the to they to crime can commit so upon others might encourage financial from informer by to the the obtain or credit who wishes reward police police

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discussing In the acceptability of entrapment as a police and prosecuting authorities. technique it is important to remember that its use allows scope for the unscrupulous informer or police officer to advance their own personal interests. It may then be by be the the use of entrapment wise to cautious about too strong an endorsement of interrogation PACE it is In that the regime allows police. under unlikely contrast much scope for the advantage of unscrupulous personal interests on the part of the interrogators, especially given the increased visibility of the process. Covert by definition low operations are visibility and are therefore prone to encourage of by corruption police officers. In the nineteenth century in England the fear of police use of entrapment amongst branch factors development detective inhibited the of other of a properly established the police until 1877. As T. Critchley in his history of the police in England observes, (8) "The extreme sensitivity of public opinion towards anything that savoured of 'continental' methods in using police for discouraged doubt to trap espionage purposes or people no the formation of a detective department at Scotland Yard. " Indeed, only a few years after the formation of the CID the police engaged in detecting and securing evidence against a suspected entrapment as a means of be distaste The Times to the newspaper, which can and anger of offender, much barometer in England (see the that time as a of respectable opinion. viewed at 16 of this chapter). reference at note This hostile reaction to the police method in the Titley case is testimony to an English distaste at entrapment as a detection and investigatory tool of the police. This hostility to entrapment which manifested itself at official as well as popular level J. Lord C. into Goddard the the twentieth remarks of century, e.g. see continued wel-I in Brannan v Peek (1947) (9). Only fairly recently, perhaps since the 1970s, does the investigatory in technique certain circumstances propriety of entrapment as a useful for Roskill been have the to example comments of unequivocally accepted; see seem L. J. in Rv Underhill (1979) (10) and Woolf L. J. in DPP y Marshall (1988) (11).

However, it is important to note that official hostility towards police use of for from have implications did the that of evidence not admissibility entrapment Titley it Rv Rv Sang (1979) (1880) From to the was generally of case entrapment. fact irrelevant by judges by the that the to the the of entrapment police was accepted 282

There were a question of the admissibility of the evidence of an agent provocateur. few casesof first instance exclusion of entrapmentevidence in the 1970s but these decisions were criticised by both the Court of Appeal and House of Lords as wrong headeddecisions. In Rv Titley (1880) the police suspected the accused of being concerned with the illegal procuring of abortions. However, hard evidence was difficult for the police to judge trial the secure since as commented, (12)

11... personswho committed crime were personswho concealed " crime.

The police therefore decided to lay a trap for Mr. Titley who was a chemist. The iflegal for his interested in to the police arranged a policeman and wife pose as parties They the services of accused. made contact with the accused at the chemist's shop. The accused feR into the trap and not only wrote highly incriminating correspondence but he he the thought with was an ordinary civilian, also supplied policeman whom the undercover policeman with the necessary chemicals for the offence when the The Titley his At that was arrested. evidence so policeman called at point shop. Titley the trial not surprisingly was convicted of gathered was admitted at and The interest intent to the procure miscarriage of a woman. unlawfully supplying with been had in Titley Titley's to the the reaction case after of case resides partly few January In House Commons 11 188 1, th the on a weeks after the convicted. of trial, Sir Herbert Maxwell asked the Home Secretary whether (13), " it is the intention of the Crown to prosecute Inspector ... O'Callaghan and Sergeant Stroud for conspiring to incite Titley to commit an indictable offence?"

In reply Sir William Harcourt, the Home Secretary,connnented, I regret that the police should have decidedupon the course to which they resortedwithout advising the Home Office became it I the acquaintedwith on the eve on subject. only I I Like the trial. other people was startledwhen was of informed of it and I askedfor a report on the matter."

facie This suggeststhat such police methods were consideredprima objectionable Harcourt noted, even where 283

11

A-

doubt in left the the police of minds no evidence Lae ... Titley had beenin that the habit of practicing thesecrimes " for long time past. on an extensivescale a -

In the present day when the police suspect ongoing illegal activity and therefore set a trap to secure evidence of that activity by procuring the commission of an example of that continuing criminal conduct as in DPP v Marshall (1988) then such police However, in late nineteenth century methods are considered unobjectionable. England the fear of the police "spy" was still strong being almost a cultural aversion to such techniques of policing. The influence of this cultural aversion lasted well into the twentieth century, for example in Rv Mealey (1974) (14), Lord Chief Justice Widgery referring to Brannan v Peek (1947) commented, "No one who read Lord Goddard C.J.'s words about the dislike for such agents in this country should think that the attitude of the courts toward agents provocateurs is different in principle from what it was then." defendant in bets the with reluctant a constable placed betting legislation for to the an attempt street secure evidence a prosecution under then in force. Lord Goddard Lord Chief Justice commented, In that case, Brannan v Pee

"The court observes with concern and disapproval the fact that the police authority at Derby thought it right to send house into to commit an offence. police officers a public It cannot be too strongly emphasized that unless an Act of Parliament does so provide - it is wholly wrong for a police be to officer or any other person sent to commit an offence in order that an offence by another person may be detected."

In the samevein Lord Goddardcontinued, I hope the day is far distant when it will become a common for be in to told to this police officers practice country for themselves the purpose of getting commit an offence " someone. evidence against

This is no doubt a reflection of the old view that the English police are somehow forces in from En&h distinct the the that the rest world pohce of and unique and Brownin_g J. W. M. Watson be In trickery as entrapment. v police should above such (1953) (15) Lord Goddard made a blanket condemnationof entrapmentas a method of the police,

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"No court in England has ever liked action by what are in generally called agentsprovocateursresulting imposing criminal liability. "

Criminal liability was often imposed, though, becauseentrapmentevidencewas not from few first instancedecisionsin the 1970s. trial excluded until a It is important then to distinguish between cultural objections to entrapment which characterized much official discourse in England until fairly recently and the forms improper to objections of straightforward principle of entrapment. The cultural in England to objections entrapment sought to distinguish the English police whose based from (e. in "citizen the power was on public consent g. constable as uniform") the continental police agent who would employ tricks and traps against the citizenry in the interests of a ruling political elite. An example of an objection of principle to is it is function the that to test the virtue of a entrapment argument not a proper state involvement in citizen not reasonably suspected of ongoing criminal activity. However, in late nineteenth century England arguments against entrapment tended to be based on cultural terms, i. e. that it was somehow 'un-English' for the police to avail themselves of entrapment. In the House of Commons in January 1881 Sir William Harcourt had laid down the principle that, "As a rule the police ought not to set traps for people." However, Harcourt accepted the difficulties of obtaining evidence in certain cases he when conunented,

"If there is to be a departurefrom this rule under is the extraordinary circumstances matter one of such difficulty that the discretion ought not to rest with the directed have I that no accordingly police authorities. future for be the to without suchmethodsshall resorted direct communicationor authority from the Home Office. " Harcourt had, in his House of Commons reply to Maxwell, set out the difficulties detection, with entrapment as a means of

"In the first place there is a dangerthat while the police information be in that crimes most possessionof may being to mischievous society are committed, these detection be difficult if impossible of not crimes may by ordinary means." 285

However, outweighing this argument in favour of entrapment is the followi g important considerationnoted by Harcourt, " there is the other dangerthat the confidenceof the ... be in faith the public may shaken good of the police; and of all the evils that could occur that would be the greatest."

Given this risk Harcourt commented, "'The casesin which it is necessary or justifiable for the police to resort to the artifice of the description in practiced this casemust be rare indeed."

Public confidence in the good faith of the police does seem to have been upset if the editorial in "'Me Tirnes" can be taken as a reflection of the opinion of the propertyowning classes. ne Times was convinced that the police had behaved badly in the Tilley case (16), "Whether the phantom charge against Thomas Titley be can sustained or not is a matter which concerns himself The charge against the police is of much more general consequence... In Thomas Titley's case the from whole crime one end to the other is the mere He is found in his the concoction of police. engaged lawful occupation as a chemist and he is urged to an unlawful course outside his regular business. There is here detection than the more of crime. The initiative is with the police and not with the offender; each subsequent step is the result of a distinct suggestion have If the the the on part of police ... police really done what the Recorder's charge implies the proceedings is described none too strongly as very greatly to be for in itself it the to reprobated and abuses which obviously lends itself. "

This editorial, apart from being a useful critique of the practice of entrapment, illustrates that such methods were unacceptable to respectable public opinion in late by England. The has the that possibility use of entrapment police a nineteenth century tendency to upset public confidence in the good faith of the police is noted by the Heydon, J. D. (17) who comments, commentator modem

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"Public fearsof entrapmentcreatesuspicionand insecurity. Trappersare undemocraticin being a secretpolice force." An indiscriminate use of entrapment by the police is likely to have consequencesfor faith in the fairness of the whole criminal justice process: on this see Chapter public 9.

Cultural objections to entrapment as a legitimate police method of investigation in England continued into the twentieth century, for example, the Royal Commission on Police Powers and Procedure 1929 commented on the term "agent provocateur", (18)

" the useof a foreign phrasefor which there is no exact ... English equivalent indicatesthat the practice is regarded habits to alien as our and traditions." However, the 1929 Royal Commission, like Harcourt in 1880 were prepared to tolerate entrapment as an exceptional measure. The 1929 Commission started its discussions however, with a clear denunciation of police tactics designed to entrap into citizens crime. Indeed, the Royal Commission commented that in those circumstances, (19) "We do not believe that a prosecution would ever be instituted on evidence obtained in such circumstances or that a prosecution thus instituted would result in a conviction. "

This comment that no prosecution would ever be instituted where the police had initiated offences "with a view to enticing or entrapping members of the public into breaches law" is interesting in light Choo's (20) the the of of proposal that conu-nitting lead to a stay of the proceedings as an abuse of the proof of entrapment should is impropriety the the that so grave that mere pre-trial police court, process of is inadequate remedy. evidence an exclusion of 'Me Royal Commission of 1929 obviously regarded criminal proceedings based on fundamentafly by flawed that the so proceedings entrapment as obtained evidence instituted be However, the the argument of the against entrapped citizen. should not 1929 Commission was more subtle than merely arguing that entrapment is always The Commission basic (2 1) that the started with proposition since, objectionable.

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it is the primary duty of the constableto prevent the ... his part commissionof crimes and offencesany conduct on leading to the commission of offenceswould be highly " reprehensible.

However, the Commission recognisesthat it is also the duty of the police to enforce the law and to secureevidencein pursuit of this aim. Yet for certain types of offences the obtaining of evidencein the usual ways is difficult if not impossible. (22)

"The offences in regard to which such difficulties most frequently arise are drftiking in licensed premises or clubs during prohibited hours, betting in unlicensed premises, betting, The Hours Shop Act and street offences against fortune " tellers. cases of clairvoyants or

However, these situations throw up another problem: should the police merely legitimately hope in that they take part the way or can observe of gathering evidence in criminal activity in order to entrap the suspected offender into an example of his be him to that therefore gathered prosecute evidence can ongoing criminal conduct so for that ongoing criminal activity? The 1929 Commission recommended that, (23) it as a general rule the police should observe only without ... in " the offence. participating

This echoes Sir William Harcourt's comment that, "As a rule the police ought not to set traps for people.11

However, the 1929 Conunission like Harcourt, were prepared to make exceptions to

the generalrule, for the 1929 Commission this was where,

"Observation without participation is from the nature of the impossible. " case

The Commission was also prepared to tolerate as an exceptional measurepolice traps

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(24) be is the to to protection public". afforded

Entrapment in every circumstancehas never been officially disapprovedof although the technique has only been tolerated as an extreme measure to be used very sparingly. As was statedby Nolan J. in Rv Governor of Pentonville Prison ex part Chinoy (1990) (25)

"Our law has always acknowledged the fact, unpalatable as it may be, that the detection and proof of certain types of criminal activity may necessitate the employment of underhand and even unlawful means."

Even when police entrapment activity went beyond the narrow limits of legitimacy set by Royal Commission 1929 (e.g. in Rv Birtles (26) the police encouraged a the out known criminal to rob a post office and even provided him with a car to stake out the him he imitation to the premises and gave an gun perform robbery after which was beyond legitimate is Commission 1929 this the clearly established as arrested, what use of entrapment) the law implicitly sanctioned the entrapment by admitting the legal into The the trial. consequence of proof of agent provocateur only evidence of because Before the was a sentence of entrapment reduction of element entrapment. the 1970s the sentence reduction and a judicial rebuke to the police were the only forms the to the responses of criminal court even more offensive of entrapment. Indeed there were some very strong statements of judicial disapproval of the practice Lord in Goddard Brannan Lord Pee Parker in Rv Birtles, e. of entrapment, g. v and but prosecutions were still brought against the entrapped citizen despite the claims of the 1929 Royal Commission that prosecutions would not be brought where the police had initiated offences, "with a view to enticing or entrapping members of the public into committing breaches of the law". Not only were prosecutions brought, but the by 1970s the that the not until courts would countenance possibility evidence obtained be doubtful from It is the trial. whether the terms of the excluded entrapment should discretion conferred in Kuruma vR (1955) allowed trial judges to properly exclude if Rv Sangl Lord Diplock to, they wanted per see evidence even on the entrapment limits of the Kuruma discretion. 1be admissibility of entrapment evidence in law and the unwillingness of the judiciary to exclude it as a matter of discretion is in line with forms impropriety judicial PACE to other the pre approach such as illegal of police in is the there property which and result of persons obtaining evidence: searches of from illegal in the evidence obtained search was where an excluded no reported case

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trial judge's discretion. The sentence reduction continued as the only significant judicial response to the fact of police entrapment into the 1980s and early 1990s, see Rv Underhill (1979) Rv Mackey and Shaw (1992) (27). However, the picture is slightly more complicated than the above statement implies. In the 1970s before the case of Rv San-g(1979) high Rv McCann Rv Birtles (1969) (1971) (28) and after and authority which are all for the proposition that there is no judicial discretion to exclude entrapment evidence there were some interesting developments at first instance level. G. Robertson Q.C. points out, (29)

"T'he debate over whether and if so upon what occasions the courts should exclude evidence obtained by tricks liveliest issues traps the throughout the of and was judges trial seventies, as and academic commentators discretion judicial the to the wrestled with extent which be law exercised against receiving at common could evidence of police provocation of unwilling and at first unwitting offenders."

Foulder, Foulkes and Johns (1973) (30) the accused were charged with had drugs. An approached undercover police officer unlawfully possessing controlled

In Rv

Foulkes and persistently requested the drugs. As a result the three accused later met the policeman, produced the drugs and were then arrested by the policeman. The defence by the the arguments that the policeman was rejected court after evidence of discretion to exclude should be exercised since the police had encouraged the accused to commit the offence. The three accused were acquitted. In Rv Burnett and Lee (1973) (3 1) Lee was introduced to a police informer who told him that she was the agent of a foreign government and was interested in finding the large forged in travellers them cheques and obtaining currency and source of her diplomatic have in Lee "he She told that status would view of also quantities. home Lee's informer The to asldng persistently phoned worry about". nothing delivered forged US he had discovered After the two the accused source. whether dollar bills to the informer they were arrested by the police. The trial judge held the inadmissible since there was a strong suspicion that the conduct of the evidence informer tempted and encouraged the accused to conunit crime.

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However, the Court of Appeal in Rv McEvilly (1973), (32) commented that the had been both Rv Foulder Rv Burnett in evidence of the entrapment wrongly and

both in have been trials. excludedand should admitted In Rv Ameer (1977) (33) another first instancejudge, JudgeGillis Q.C. did not heed the Court of Appeal's strictures in Rv McEvilly and excluded the evidence of an , agentprovocateur. The correctnessof the decision in Ameer was strongly doubtedby the House of Lords in San-R(1979) It is an interesting observationthat before the S. 78 PACE decision Court Lords Appeal House enactment of of no ever of of or judicial discretion the to exclude evidenceof an agentprovocateur. sanctioned use of It is thereforeslightly misleading for G. RobertsonQ.C. to comment, "What the House of Lords took away in Sang in 1979 Common Law this to exclude effectively very power at unfairly obtained evidence - Parliament gave back albeit in confusing terms in 1984 through Section 78 of PACE. " (34)

The common law discretion, the Kuruma discretion was never approved of by the Court of Appeal so as to act on the evidence of an agent provocateur. The recent case landmark in English is Rv Smurthwaite C. (1994) A. therefore criminal of a major for first Court Appeal the time to trial the case gives of evidence since approval judges to exclude in their discretion the evidence of an agent provocateur where fairness 78 This "the S. PACE. the to safeguard of proceeding" under of appropriate far from discretion, Sang" Section 78 "pre to the the that returning us suggests law Robertson implies, is discretion than the actually a wider common position as Cooke (1994) C.A. ) and is based on a different ideological in that the collection of evidence or non observance police misuse of power rationale, fairness the of the proceedings. of proper procedures can affect discretion (see Rv

The Home Office Circular to the Police on Informants who take part in crime (35)

There exist certain Home Office instructions to the police on the use of informers and law faithfully Leigh in As (36) they the points out reflect stating entrapment. force informant that no member of a police should and no public categorically is in This judicial incite the commission of a crime. accord with or procure counsel, Brannan Rv Birtles, in (37). Leigh Peek As such cases as v and pronotmcements

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informers Circular the and entrapment, to the police on use of points out, the "Scrupulously accordswith the legal rules evolved by the denial It of any specialposition of courts. reflects a break impunity to the police who may not, with sanctity the law in order to enforce the law." (38)

The Circular goes on to state that, (39) 11

informant information the where about an gives police ... intention in the to of others commit a crime which they intend that they shall play a part, his participation should be allowed to continue only where: i) he does not actively engage in planning and committing the crime, (ii) he is intended to play only a minor role; and (iii) his participation is essential to enable the police to frustrate the principal criminals and to arrest them before injury is done to any person or serious damage to property. The informant should always be instructed that he must on no by account act as agent provocateur, whether suggesting to others that they should commit offences or encouraging them to do so, and that if he is found to have done so he will himself be liable to prosecution."

Infiltration of a criminal conspiracy is allowed by the Circular but the informant must himself boundary into becoming to the never allow cross an agent provocateur. Neither the police nor their agents should counsel, incite or procure the commission of a crime.

Rv Sang and Entrapment Evidence

In Rv Sane the House of Lords held that since there was no substantivedefenceof law be discretion English in there therefore that to exclude no should entrapment Lord Diplock As (40) commented, entrapment. evidenceof "If (the judge) exercisedthe discretion in favour of the have direct he jury then to the to acquit. would accused How doesthis differ from recognisingentrapmentas a defencebut a defencefor which the necessaryfactual foundation is to be found not by the jury but by the judge factual foundation found is the the and even where so defenceis available only in thejudge's discretion." 292

J. D. Heydon (4 1) has pointed out that Lord Diplock is not strictly correct in his Lordship's analysis of the situation,

"Those who advocatethe discretion to excludeevidence do by obtained entrapment not advocatethat if entrapment have discretion the to exclude all exists court should a discretion The otherwise admissibleevidence. advocated is simply to exclude evidencewhich proceedsdirectly from the entrapment."

Therefore, on this analysis evidenceof an independentwitnessto the crime causedby the police entrapment or a confession made by the entrapped suspect would be hence admissible and go to prove guilt independent of the evidence of an agent Recognition is inconsistentwith the argumentthat the existence this provocateur. of discretion to exclude evidence of an agent provocateur is tantamount to of a defence recognising a of entrapment. However, in argument against Heydon's following from in First Rv Ameer the analysis are observations. of all., all evidence the commission of the crime was excluded by Judge Gillis Q.C. It would remain theoretically possible for a trial judge not only to exclude the evidence of an agent but provocateur also any confession or other evidence which exists to prove the judges S. 78 PACE. If trial offence under of excluded other evidenceas well as the in in the agent provocateur a caseof entrapment order to safeguard"the evidence of fairnessof the proceedings"under S.78 then the situation would look very similar to a 'defence'of entrapment. However there is still a crucial distinction. Section 78 is a discretion which may or may not be used to exclude the evidence of an agent however if indeed the of crime such as a confession, other evidence a provocateur or defence of entrapmentis made out it is not dependenton the exercise of a judicial discretion. Moreover in Rv Smurthwaite the leading caseon S.78 and entrapment., Lord Taylor only sanctions the discretionary exclusion of the evidence of the agent Taylor is discretion S. 78. Lord judge's in the silent on the effect of under provocateur the S.78 discretion on other evidence of a crime committed becauseof entrapment. Can a confessionof an entrappedcitizen be excludedunder S.78? If only the evidence be 78 S. under and not the confession of the excluded of an agent provocateur can be defence to the then this similar operation of a of would not entrapped citizen be in his is There Heydon right analysis. no good reason would entrapment and however why a confession following an improper entrapment operation cannot be from is be It 78 78. S. S. the that authorities clear can used to exclude excluded under S. 76: 5 Chapter this thesis. under admissible of see otherwise confession a

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However, Heydon can be criticized from a standpoint of principle. Heydon by discretion to commented that those who advocatethe exclude evidence obtained directly discretion to entrapment mean a exclude evidence which proceeds simply from the entrapment:seenote 41 of this chapter. However, this would lead to inconsistent results and hence injustice by not treating similar casesalike. If the prosecutionevidenceconsistssolely of the testimony of the agentprovocateurthen an acquittal would follow exclusion of that evidencebut if the police had obtained a confession from the entrappedcitizen then a conviction may by if the the the trial still result even evidence of agent provocateur was excluded judge. The arbitrary nature of the remedy of discretionary exclusion where favour is drastic in entrapment exists an argument remedy of a stay of of a more fact has been improper (allowing there the that proceedings where entrapment involved in is improper if it is those entrapment sometimes not ongoing used on between A criminal activity). stay of proceedingswould achieveconsistency similar improper by casesof entrapment precluding the possibility of any conviction at all of the improperly entrappedcitizen. However, whatever the merits of the argument in favour of a stay of the proceedings discretionary had Rv Sang the unquestionable effect of precluding the over exclusion, fact judges from trial the of entrapment as a relevant possibility of even considering factor in the exercise of their judicial discretion to exclude evidence. Rv Smurthwaite in its interpretation of S.78 makes Rv Sang,redundant as an authority that entrapment is irrelevant to the exercise of any judicial discretion to exclude Even before Rv

dicta S. 78 suggested applied to the evidence. In Rv Gill (42) (1989) reservations were made evidence of an agent provocateur. be 78 interpreted dicta in Rv Harwood S. (1989) that should so which suggested about Smurthwaite

discretion In Rv Sang the to to the to exclude. on entrapment point and as give effect Governor of Pentonville Prison ex varte Chinoy (1992) (43) it was stated by Nolan J. that the fact of entrapment may be taken into account under S.78.

The Modern Judicial View of Entrapment and Discretionarv Exclusion The judicial trend to see entrapment as a relevant factor to the exercise of the S.78 discretion was confirmed authoritatively by Lord Taylor, Lord Chief Justice in Rv

Smurthwaite (1994).

However, the judgement in Rv 294

Smurthwaite, like the

judgement of Nolan J. in Chinov recognised that sometimes entrapment can be a

legitimate police practice. In Rv SmurthwaiteLord Taylor commented, "... the fact that the evidencehasbeen obtainedby by by an agentprovocateuror a trick entrapmentor doesnot of itself require the judge to excludeit. " (44)

If discretionary exclusion under S.78 is to mark the limits of acceptable and for Rv (e. Mason unacceptable police conduct g. see a police tactic that was 'unacceptable')then by stating that the fact of entrapmentdoesnot of itself require the judge to exclude evidenceseemsto be implying that entrapmentmay be a legitimate police tactic in certain circumstancesand evidenceshould not be excluded from trial in those circumstances. This reflects a decisive shift in the acceptability of from the position maintained by Lord Goddard in to entrapment official opinion Brannanv Peek (1947).

It is interesting to compare Lord Goddard's denunciation of entrapment in Brannan v, Peek with the cautious approval given by Woolf L. J. to entrapment tactics used by the distaste in DPP Marshall. The in police, v official with entrapment activity manifest the opinions of Lord Goddard was a cultural legacy from the nineteenth century and the fears of that time of 'continental' police methods such as entrapment. The legacy had hold but by fact in 1947 1988 the that a continued nineteenth century be fully investigatory by Divisional tool the a useful accepted seems entrapment can Court in DPP v Marshall,. The English police are not to be distinguished from their Canadian, American or continental counterparts, all of whom employ entrapment as a law enforcement tool to the lesser or greater degree. The only limits of principle on by English. the police are the same arguments of principle which entrapment activity forces liberal democratic in The to police other societies. old arguments that apply the use of entrapment by the police is un-English, or in the words of the 1929 Royal Commission "alien to our traditions and habits" can no longer be plausibly used to The in England Wales police and are now criticize police use of entrapment. PACE the as a core state agency given special powers enactment of understood after forces in in investigate duties to to are who similar crime status and role police and The democratic in Lord Goddard's liberal argument societies. manifest other judgements that entrapment is inconsistent with the traditions and role of the English light in ideological be the the of maintained changed understandings of police cannot in Report in RCCP in England 1981 the particular manifest of and the the police role PACE Act 1984, the entire structure of which treats the uniformed officer as having

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democratic liberal in duties state. powers and peculiar to the office of policeman a Judicial attitudes to the use of entrapmentby the English police should be consistent with the view of the police embodied in PACE as a state agency charged with detecting and investigating criminal offences and given special powers to that effect. There should be.,and indeed there is, a more relaxed judicial attitude to the use of by the police. entrapment

In DPP v Marshall (1988) police officers in plain clothespurchasedfour cansof lager from but bottle liquor by licensed to the case not and a of wine a shop which was sell to sell individual cans or bottles of liquor. The respondentswere chargedwith having lager having licence justices' the the the sold wine without contrary to and requisite S.160 of ne Licensing Act 1964. The respondentsargued that the police officers' been had have S. 78 PACE (1) the since evidence evidenceshould excluded under of been unfairly obtained because the officers had not at the time of the purchase fact The they the that revealed were police officers. magistratesacceptedthat claim. On appeal by the Director of Public Prosecutions Woolf L. J. held that the evidence of the police officers had been wrongly excluded by the magistrates. The case was hearing direction the to the to of the remitted magistrates with a proceed with information. Woolf L. J. made the following important observations, (45)

"If the justices are entitled to excludeevidenceon the basis justices in decided the this to excludethe evidence, which case that could have wide-reachingimplications on the methods adoptedof obtaining evidencein a large rangeof criminal In this offencesof sort. regard to the particular offenceswhich by in information keeping this that one can conceive are alleged the premisesunder observationthe police could have obtained the evidencewithout adopting the strategemwhich was adopted in this case.Clearly while that could have beendone it would have beenmuch more time-consumingand difficult than in the procedure which was simple adopted this case adopting law to the trying make a purchasewhich would contravene of in the way alleged in the information." There are still important problems of principle with entrapment as a law enforcement decision in fact Rv Taylor's Smurthwaite hence Lord the that the evidence technique, is judge's by the the to relevant agent provocateur exercise of an was obtained discretion to exclude evidence under S.78. The important argument of principle is function into is to it encourage citizens crime that not generally an appropriate state

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for the purposesof securing convictions against those citizens. If S.78 is concerned partly with safeguardingthe moral integrity of criminal proceedingsthen proceedings which are instituted againsta citizen where the citizen was encouragedto commit the crime by agents of the state are morally undermined. However, entrapment is a legitimate techniquewhere there is ongoing criminal activity for which it is difficult to obtain evidence in the normal way. Entrapment in this situation becomes a legitimate investigatory tool alongside'mannafrom heaven'operations(as in Dawesv DPP (1994) (46), where a car door is deliberately left open to catch a habitual car thief; the door locks automatically from the outside when the thief is on the inside of the car) or 'trickery' operations (as in Rv Christou and Wright (1992) (47) a shady jewellers, in fact a police trap, recorded criminals offering stolen goods for sale) to detect and secureevidence against suspectedoffenders. Where entrapmentis used against suspectedoffenders then it is no more objectionable than the use of 'manna from heaven' operations or 'trickery' to obtain evidence against other suspected Entrapment be offenders. can viewed as an evidence gathering technique to secure the conviction of people already (pre the entrapment)suspectedof involvement in criminal activity. However, the type of 'trickery' used in Rv Christou and Wright be had because danger if the the to to would seem only a offence not guilty offender been committed then any trick to secure evidence of it will by definition not work. Tricks can only be effective againstthose engagingin criminal activity: for example, in Rv Ramen (1988) the appellant worked for the Post Office; his duties included dealing with remittancesreceived by a Head Post Office from branch offices. As a bundle letters, investigating him result of suspicions one of which officers sent a of listed in its The X100 cashwhich was not contents. appellant was contained as part of found in possessionof the X100 and duly convicted. The Court of Appeal on his appealagainstsentencecommentedthat, "This caseis a world away from the agentprovocateurtype This is in of case. a case which as a result of suspicion honesty into test the unprovena effect, appellant's was put of be indeed it in this the regularly court must as experienceof in thesePost Office caseswhere suspicionfalls upon an here There in trust. of was no question employee a position of have if applied the court applying such a principle as might thought right in the agentprovocateur casesor in the true is This is This not sucha case. a casewhere entrapmentcases. is in trust of caughtout and thoroughly a man a position deservedthe sentencewhich was passedon him. " (48) To restate an important point, tricks such as employed against Ramen are only fallen for bait. have innocent the the man would not criminal, an effective against

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However, entrapment is a different matter. The commission of the crime can be actively encouragedand indeed suggestedby undercover police and the innocent citizen is vulnerable to such tactics as is the professional criminal. Even the virtuous citizen is suggestible to the incitement of others to a certain degree. 'Mere is an important distinction between verbal persuasionto criminality by police officers and merely offering the opportunity to criminality as in Rv Ramen. It is becauseof the danger of 'innocent' citizens becoming corrupted that entrapment raises such important issuesof principle. However, those with previous criminal recordsneedto be protected from undue police pressure to commit crime also. It should not be thought that merely becausesomeonehas a criminal record that he is 'fair game' for the use of entrapment. Entrapment should only be used on those suspectedof fall into that ongoing criminal activity and of course not all previous offenders feature from heaven disturbing "Manna category. operations" share a with but in habitual that they tempt the entrapment also may tempt may not only criminal 'innocent' citizens into crime. 1be police tactics disclosedby Williams v DPP (1994) have drawn much adverseacademiccriticism (49) becauseof the dangerthat innocent be into individual tempted that there target of citizens could was no specific crime and the operation. However, verbal persuasionto criminality is a much more insidious for by, the temptation to than criminality corrupter of personality merely offering door leaving inside. This is with valuable goods example, an unlocked van why be It should also entrapmentraises such acute problems of principle. remembered that police officers may be particularly skilful in the verbal manipulation of others,a factor which adds to the acuteness of the entrapment problem. An interesting development in Rv Smurthwaite is in Lord Taylor's list of factors favouring the inclusion or exclusion of the evidenceof an agent provocateur. One of thesefactors 'reliable record' of the event exists: a record as to what was actually was whether a by during by the the the accused undercoverpolice and what was actually said said (50) undercoverentrapmentoperation. There is an interesting and significant parallel here with the judicial decisionson the for PACE interviews breach the of recording provisions of of consequenceof police breach Keenan, Rv Scott Rv where significant of the recording suspects: see is There likely held in to the exclusion of confessionevidence. result provisions was for investigatory Practice Code techniquessuch as covert or statutory scheme of no in 'covert' Rv in Taylor Rv Smurthwaite but Lord the casesof and earlier entrapment Christou and Rv Bryce applies to undercover operations similar principles on the importance of recording the encounter between police and suspect in the covert Code C Codes the to the that of of obtaining of confessionsunder apply operations 298

T%--

independent importance The PACE. of an record of the covert Practice under by (preferably the police and what was tape operation recording) of what was said a by is is the the to the tape said confessionscases, recording neededto suspect similar help the judge to adjudicate on what was said by the suspectand the exact role of the police in the operation. The role of the police in the operation can have important consequencesfor the admissibility of any evidenceso obtained; if the police role was too active then the trial judge may decide to exclude the evidenceunder section 78 of PACE. Under the old common law the word of the police, their oral testimony at trial was taken by the judge and often the jury as proof of the making of the confession. There were exceptions,e.g. see Rv Pattinson (1973) C.A. (5 1) per Lawton L. J. but in the ' vast majority of casesthe testimony of the police satisfied the court as to the making The of a confession. word of the police was similarly acceptedas strong evidence that the entrapped or tricked citizen had actually committed the criminal offence If in in Rv Rv Payne the trick alleged. entrapmentor producedreal evidenceas or as Sang then the testimony of the police was less crucial to prove guilt. However, in in Brannan Pee the only evidencethat a trickery some casesof entrapmentor as v had been conunitted as a result of the entrapmentor trick was the testimony of crime police officers. 'nie testimony of the police that the words and conduct of the accusedwere as alleged have been The by in the to the same accepted without question courts case. seems following in Rv Lord Taylor's in Rv Christou (1992) today, comments and operation Smurthwaite (1994) may be required to be tape recorded covertly before the evidence be into However, in Williams DPP the evidence. v alleged crime can admitted of (1994) the testimony of the police officers as to the appellants' behaviour in taking out from in back 'police (actually the the trap) van of a was accepted cartons of cigarettes the absence of any recording of the incident. However, in Williams the two full had made admissions to the offences so the evidence of what the police appellants it be in In thought the the case. any case should not only evidence observed was not fatal is to the the trick that the absence of a record of necessarily or entrapment for factor factor, important It is the though the an merely a evidence. admissibility of judge in deciding to exclude evidence in his discretion under S.78 (1). However pre PACE, generally speaking the word of the police as to the successof their undercover issue by in the the the the courts accepted as authoritative word on was operations face of any denial of the evidence by the defendant. However, as noted earlier in this thesis, police evidence, especially evidence that the accused made oral confessions to

299

the police, became increasingly suspect in the 1970s after decades of uncritical for interrogations. led distrust This to the recording regime acceptance. of course Lord Taylor in Rv Smurthwaitelikewise insists upon a taped record for undercover facts his Taylor, by Lord As to the of applying own principles operations. was stated Rv Smurthwaite(52),

"The two tapeswere an accurateand unchallengedrecord. They record not admissionsabout someprevious offence but the actual offence being committed of soliciting Webster(the undercoverpolice officer) to murder. The appellantwas making the running throughout. In thesecircumstanceswe can find no ground for his learned judge the the of criticizing exerciseof discretion under S.78." Lord Taylor makes clear that a recording may be vital not only to establish that in fact the accused succumbed to the trick or entrapment but also to establish the precise role of the undercover policeman, i. e. was he an agent provocateur or not? In Smurthwaite the tapes disclosed that it was the accusedwho made the running throughout therefore it was a case similar to whether the police merely provided an opportunity for the commission of offences which would otherwise have been committed. In the absence it be down-play in in interests the tape the the to their of a role may of police entrapment or trick and seek to minimize the pressure they applied to the suspect to is Given the the the that commit precise role of undercover police a alleged offence. factor he deciding in S. 78 (e. their to was an crucial g. whether exclude evidence under did he do "play than no more merely along" with the suggestion agent provocateur or have did he the of ask questions about previous offences which should accused, or been governed by Code C of PACE as in Rv Bryce (1992) then a tape recording of , the event is of vital importance. There is an interesting comparison with the operation did is here. S. 76 2(b) S. 76 2(b) PACE One the what of of crucial questions under of the police really say or do to the suspect in interrogation before the confession? In R failure Delaney Court Appeal (53) that the to properly record the asserted a of v interrogations where there is a doubt as to what the police did say or do to the suspect 76 2(b). The Court fatal S. be to the of admissibility of a confession under could Appeal in Rv Smurthwaite implies that a failure to record a covert police operation involving an elemen of entrapment may be fatal to the admissibility of the evidence if there is a conflict at trial about whether the police acted as agent provocateurs or for independent is The the an record of police not an adequate substitute word of not. is A interrogations tape to required not entrapment operations. only or either help judge determine but to the trial that a confession was made also adequately prove

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Simýlarly inducement tape to the a threat confession. made prior whether an was or did implicate in factor is that the accused recording a crucial establishing not only himself in criminal activity but also to establish the precise role of the police in the if is Also i. how they? there operation, e. a prohibition on the asking of proactive were questions about an offence in an undercover pose by the police then a tape may be required to persuadethe court that any incriminating replies made by a suspectwere not induced by a prohibited question from the undercoverpolice officer about the involvement in independent The suspect's criminal activity. record of existenceof an done what really was said or under undercover operation is a crucial point of distinction betweenRv Christou (1992) and Rv Bryce (1992). (54) In the latter case the lack of a tape of the undercover interview with the suspect on his alleged involvement in car theft was held by the Court of Appeal to be a powerful reasonto his S. 78 In Rv exclude evidence under of remarks. alleged self-incriminating Lawrence and Nash (1994) (55) a casedecidedby the Court of Appeal three months for Rv Smurthwaite Court the after quashed convictions conspiracy to supply for to cannabis an undercoverpolice officer posing as a customer the drug. The court found that, " the officer's role could hardly have been more active ... he buy but to since not merely offered cannabis resin persistently and vigorously pressed the appellants to it. f, supply The court stressed that this fact in itself would not necessarily have led to the had However., the the evidence. police not tape recorded the agent's exclusion of telephone calls and meetings, a failure the court found "inexplicable and scarcely is implicit judicial if There that the police set up an recognition an credible". involve investment a considerable of valuable police undercover operation which can finance be in there time then may and a strong temptation on the police to resources distort or embellish the evidence as to their role in the operation, i. e. that they were lie to about the result of the undercover operation. not aggentpTovocateurs and also There is a parallel here with interrogation. A prolonged interrogation may fail to from be incriminating the the then tempted to replies suspect and police may elicit fabricate an "oral confession" if they are convinced of the guflt of the suspect and there is little other evidence: such a scenario was recognised by Hodgson J. in Rv Keenan. Similar pressures on the police to engage in concoction or distortion of during Judicial or after covert operations as well. strictures on the evidence may arise is implicit for to tape the record undercover perhaps an police operations need this possibility. of recognition

It can also be pointed out that judicial insistence on

301

tape recording of undercoveroperationsis a protection for the police and prosecution in has been from successfullychallenged since police evidence undercoveroperations the past where there is a hint of entrapment: see Rv Ameer. A tape of the covert by being "entrapment" made ciefendants operationspreventsunfounded allegationsof who in reality did all the running with the police merely playing a passive -fole, as in Rv Smurthwaite where the defence tried to allege that the defendant had been entrappedinto the offence by the police officer but the tape recording discIosed that the appellantdid all the prompting, the undercoverofficer being largely p2wdveIt is important that Lord Chief Justice Taylor has provided in recent deciskyns,some fair be h to the the guidance police on conduct of covert police operations. would if anomalous alongside the detailed legislative scheme for interrogations, stop and search powers, the obtaining of samples etc. there was little in the way of guidance to the police on the proper conduct of covert operations to gather evidence. (Iffie Police Act 1997 provides guidance for the use of surveillance devices on private p;remises.) Moreover, such guidance from the Court of Appeal is especially important imithe light of the increase in the number of such covert operations launched by the police. J. Morton in a recent work on the history of undercover police work refers toý a recent successful undercover operation, (56)

"Operation Motion hailed as the way aheadin British launched in by October West London 1994 policing and Drugs Squad,involved three women police officers going undercoverand posing as prostitutesin a brothel in Queensway." The result of the police operationwas that flArty-five dealersin hard drugs who called flat drugs filmed the at offering were on video secretly, pleaded guilty and received between four sentences of and six years. The success of such operations will no doubt encourage their spread in police forces throughout the country.

The European Convention on Human Rights and Entrapment The significance of the European Convention on Human Rights and the issue of for has in use criminal prosecutions assumed a new methods of evidence gathering dimension of importance in recent years with the incorporation of the Convention into U.K. law under the Human Rights Act 1998. It is expectedat the time of writing that force JUSTICE into in As October 2000. in Act the as a whole point come out will 302

their reportUnder Surveillance: Covert policing and Hwnan Rights Standards'(57)

"The issueof exclusion of evidenceis an arealikely to be highlighted once the EuropeanConvention is incorporated into U.K. law under the Human Rights Act 1998. This will be particularly at issuein relation to proactive policing methods."

It is important then to look at how the European Convention on Human Rights has been interpreted in the area of illegally obtained evidenceand entrapmentfor these casesmay well have a bearing on how the Human Rights Act 1998 is interpretedby English judges. With regard to evidence obtained by illegal or improper means, case law under Article 6 of the E.C.H. R., the fair trial provision, shows a similar interpretation to English law. The leading case of Schenk v Switzerland (58) holds that Article 6 does not require the automatic exclusion of evidence obtained as a result of unlawful by law had In this the prosecution conduct enforcement agencies. case relied on had Swiss the telephone government conceded conversations, which as evidence of The decision in the case confirms that there is no from has be derived 6.1. Also Convention Article the to automatic rule of exclusion been interpreted so as to allow into evidence material obtained by a trick: see Smith v been obtained unlawfully.

United Kingdom (59), where a security service agent disguising his identity, taped an incriminating telephone conversation with the applicant. The Commission declaring the complaint inadmissible, stated that the evidence had not been obtained unlawfully. The operation had to be regarded as a "ruse in the public interest". However, in the area of entrapment the European Court has adopted a more interventionist approach, but also an approach that is not inconsistent with decisions decided in English domestic law. In the case of Lfidi v Switzerland (60) the Court , held that there had been no violation of Article 8. the right to privacy, because by dealing in drugs the applicant "must have known that he was engaging in a criminal In he this case that therefore might encounter an undercover officer. activity" and drugs from had the of applicant a sample purchase made police officers undercover drugs. had then supplied a quantity of who However in the recent decision of Teixeira de Castro v Portugal (61) the Court did find a breach of Article 6 of the Convention. In this case an undercover police officer

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had approachedthe applicant and had asked whether he could obtain some drugs. The applicant, who had no previous record of drug dealing, did supply some drugs bust" The held Court "buy this that and was then charged and convicted. and operation amounted to a breach of the right to a fair trial, recognising that this case been had "predisposed" in to this type of offence and the was not one which applicant therefore distinguishing its previous decision in Lfidi v Switzerland. The Court declared that the use of the evidence "in the impugned criminal proceedingsmeans that, right from the outset, the applicant was defmitely deprived of a fair trial". ýIbe Court found that the police officers had instigated the offence and went on to stress two matters in particular.

First, controls and safeguards must be in place for fair: has be if this they to authorising and supervising such operations obviously are implications for the proper supervision of undercover operations in the U.K. Secondly,the Court stressedthat the public interest cannotjustify the use of evidence de Teixeira incitement. If Lildi Switzerland obtained as a result of police and v Castro v Portugal were decidedunder presentEnglish law using the Rv Smurthwaite but it is likely have been in Lildi that the ruled guidelines evidence would admitted inadmissible in Teixeira de Castro. However, A. Ashworth at least believes that the Teixeira de law Castro judgement English the that strength of ought to suggests for defence in provide even a of entrapment this type of case rather than mere discretionaryexclusion of evidence,(62) "This strong pronouncement suggeststhat the admissibility of evidence where there has been entrapment of a person be left kind 'pre-disposed' this to to not of offence will not by law. 'I'lie court will exclude it regulation national because it undermines the fairness of trials. This suggests that English law ought to provide for automatic exclusion defence in of evidence, or even a of entrapment, this type " of case.

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Footnotes to Chapter 8

Entrapment

(1)

The 1929'Reportof the Royal Commission on Police Powers.

(2)

1. H. Dennis, "The Law of Evidence" 1999 at p.257.

(3)

Rv Wanjiko (1954) 21 E. African C.A. 186.

(4)

Andrew L-T Choo, "Abuse of Process and Judicial Stays of Criminal Proceedings" 1993, Chapter 6 pp. 164-167 and Chapter 7 p. 186.

(5)

ibid at P.186. Ihe ability of a trial judge to stay a criminal prosecution was in the House of Lords case of Connelly v D. P.P. [1964] AC 1254. confmned Choo provides a useful account of the nature of a stay of proceedings: "A stay typically takes the form of an order that an indictment remain on file with the instruction that it is not to be proceeded with. A stay is not technically an acquittal, although for all practical purposes it may have the same effect. The revival of a stayed prosecution, without the leave of the court, is likely itself to be considered an abuse of process and to be stayed accordingly". A. L-T Chool "Abuse of Process and Judicial Stays of Criminal Proceedings" at p. 7.

(6)

A. Choo "Halting Criminal Prosecutions: The Abuse of Process Doctrine Revisited" [ 1995] Criminal Law Review, 864 at p. 87 1.

(7)

D. Hay, F. Snyder, "Policing and Prosecution in Britain 1750-1850" 1994, p.47.

(8)

T. A. Critchley, "A History of Police" 1967, p. 160.

(9)

Braman v Peek ( 1947] 2 All ER 572.

(10)

Rv Underhfll (1979) 1 Cr. App. R. (s) 270.

(11)

DPP v Marshall [1988] 2 All ER 683.

(12)

Trial judge quoted by Sir William Harcourt in the House of Commons, January 11th 1881.

(13)

Harcourt spealdng in the House of Connnons, January 11th 188 1.

(14)

Rv Mealey (1974) 60 Cr. App. R. 59.

(15)

Browning v J. W. M. Watson [1953] 2 AR ER 775.

(16)

The Times newspaper quoted in James Morton! s "Supergrassesand Informers History 203. Informal 1995, An undercover police of worle' at p. -

(17)

J. D. Heydon, "The Problems of Entrapment" [1973] Cambridge Law Journal, 272. 268 p. at p.

(18)

The Royal Commission on Police Powersand Procedure(1929) at paragraph 104 at p. 18. 305

(19)

ibid at paragraph 107, p.42.

(20)

Choo, "Abuse of Processand Judicial Staysof Criminal Proceedings"Chapter 6,1993. Seefootnote 3.

(21)

'Ihe Royal Comn-dssion on Police Powers (1929) at paragraph 104, p.41.

(22)

ibid at p.41.

(23)

ibid at p.42, paragraph 108.

(24)

ibid at p.42, paragraph109.

(25)

Rv Governor of PentonviHe Prison ex parte Chinoy [ 1992] 1 AH ER p. 317 at 333. p.

(26)

Rv Birtles [ 1969] 1 WLR 1047.

(27)

Rv Mackey and Shaw [19921 Crim. L. R. 602.

(28)

Rv McCann (1971) Cr. App. R. 359 C.A.

(29)

G. Robertson Q.C. "Entrapment Evidence: Manna from heaven or Fruit of the Poisoned Tree" [1994] Criminal Law Review, p. 805.

(30)

Rv Foulder, Foulkes and Johns [ 1973] Crim. L. R.45.

(31)

RvBumettandLee[1973]Crim.

(32)

Rv McEvffly (1973) 60 Cr. App. R. 150 C.A.

(33)

Rv Ameer [1973] Crim. LR 104.

(34)

Robertson op. cit. at p. 805.

(35)

Home Office Circular No. 97/1969. Informants who take part in Crime.

(36)

L. H. Leigh, "Police Powers in England and Wales" 1985 at p.6.

(37)

Brannan v Peak [1947] 2 Aff ER 572, Rv Birtles [1969] 1 WLR 1047.

(38)

L. H. Leigh "Police Powers in England and Wales" at p. 6.

(39)

Home Office Circular No. 97/1969paragraph3.

(40)

Rv Sang [1979] 2AHER

(41)

J. D. Heydon "Entrapment and Unfairly Obtained Evidence in the House of Lords" [ 1980] Criminal Law Review, 129 at pp. 131-132.

(42)

Rv Gifl [1989] Crim LR 358.

(43)

Rv Governor of PentonviHePrism - ex parte Chinoy [1992] 1 AU ER at p.332.

(44)

Rv Smurthwaite [199411 All ERp. 898 at p.902.

(45)

DPPvMarshaU[198812A]IER683atp.

LR748.

1222 atp. 1227.

306

684.

(46)

Dawes v Director of Public Prosecutions.The Times Law ReportsMarch 2nd 1996: An offender was arrestedwhen he was detainedby automaticactivation by door locks inside the motor of a vehicle specially adapted the police as a trap.

(47)

Rv Christou and Wright [1992] 4 All ER 559.

(48)

Rv Ramen (1988-89) 10 Cr. App. R. (S) at p. 334.

(49)

An example of such adversecriticism to the decision of the Divisional Court in Williams v DPP is provided by G. RobertsonQ.C. in [1994] Criminal Law Review p.805.

(50)

Rv Smurthwaite [ 1994] 1 All ER 898 at 903.

(51)

Rv Pattinson, Rv Laws (1973) Cr. App. R. 417.

(52)

Rv Smurthwaite [1994] 1 All ER 898 at p.905.

(53)

Rv Delaney (1989) 88 Cr. App. R. 338 at p. 342.

(54)

Rv Bryce f 1992] 4 AH ER 567 CA.

(55)

Rv Lawrence and Nash (1994) unreported. Quoted by G. RobertsonQ.C. in [ 1994] Criminal Law Review at p.811.

(56)

J. Morton "Supergrasses and Informers; An Informal History of Undercover Police Worký' 1995, at p.232.

(57)

"Under Surveillance: Covert policing and Human Rights Standards" A Report by JUSTICE 1998, at p.73.

(58)

Schenk v Switzerland (1988) 13 E.H. R.R. 242.

(59)

Smith v United Kingdom (1997) E.H. R. LR. 277.

(60)

Uldi v Switzerland (1993) 15 E.H. R.R. 173.

(61)

Teixeira de Castro v Portugal [ 1998] Crim. L. R. 75 1.

(62)

A Ashworth "Article 6 and the Faimess of Trials" [1999] Crim L. R. 261 at p.271.

307

CHAPTER 9 ENTRAPMENT

THEORETICAL THE -

OBJECTIONS

Introduction

The main theoretical problem over the use of entrapmentis that unlike for example, the use of violence to obtain confessionsor the use of force to take intimate body but be it is samples, as a police method not per se objectionable can extremely depending is in the the objectionable on circumstances which method used. (1) Identifying those circumstances which made entrapment acceptable and those law is tool circumstanceswhich make entrapmentan oppressive of enforcement the be in to central concern explored this chapter. An important initial point is to distinguish between a criminal act that is encouraged by an ordinary citizen and one that is encouraged by the police or by an agent acting from law in instructions The the the control citizens on of police. rightly expects fellow from Lord their the to citizens. resisting encouragement criminal activity Diplock in Rv Sang,commented that, by the at many crimes are committed one person ... instigation of others." (2)

There is not and never has been an issue with regard to the admissibility of evidence in the case where a defendant alleges that he would not have committed the offence but for the pressure of another citizen not acting on. behalf of the police or other due be had influence At the to the sentencing stage regard may malign authorities. of defendant. However, the where the police or another stronger or older personality on their agents have encouraged the crime a crucial dimension is added which may call for judicial action to exclude evidence or even to stay the proceedings as an abuse of the process of the courts and prevent the prosecution on the entrapment evidence from in Rid-geway J. Australian (3) McHugh As the case vR commented continuing.

"Ibe courts of justice cannotcountenancethe use of their have in to that substance processes prosecuteoffences been artificially createdby the misconduct of thosewhose duty it is to uphold the law."

308

There are important points of principle to explore here but there are also important Stober Canadian In monographon entrapment consequentialconsiderationsas well. a has written, (4)

"The police are on the 'front-line' and are usually the initial point of contactbetweenan individual and the law. Police conduct and accomplishments criminal highly therefore consequentialas they greatly are law the towards and the affect public attitudes justice criminal systemas a whole." The manner in which the police carry out their duties createsas Stober notes, "an impression which has profound effects". The excessive use of another proactive technique, stop and searchof suspectson the street provoked the most serious civil disorder in England for a century in Brixton in London in 1981. Moreover, it is law duties that the the their to widely accepted and police cannot carry out enforce investigate offences without the co-operationof the public and that this co-operation dependson public faith and trust in the police. Reiner and Spencerhave commented, (5) "The primary determinant of police effectiveness in dealing is with crime not management efficiency or technical powers but flow of information. Ibe lifeblood of policing is public from If the police support. sections of society are alienated this is not only regrettable in itself but a serious barrier to the investigation of crime. "

It has been recognised that indiscriminate or misplaced police use of entrapment can both last in Sir William Harcourt in loss the the police as cause a of public confidence Heydon J. (6), who wrote the modem classic article on entrapment, century and pointed out. However, apart from these important consequential considerations which should

by indiscriminate use the police of the techniqueof entrapmentthere caution against issues of principle to consider. remain vital The basic point of objection to entrapment is well put by Robertson, who comments,

(7) "It is a contradiction in terms for officials chargedwith broken. be for law " it to the to arrange maintaining 309

The focus here is on the misuse of state power - that it is inappropriate for law in its the than their rather to of crime creation enforcementofficers engage resources detection or prevention. 'Me misuse of state power is qualitatively different from a failure to observeproper proceduresin the investigation of crime such as a wrongful denial of legal advice or even the use of violence to obtain a confession. The point is that police entrapmentcreatesthe commission of a crime that would not otherwise have been committed. It is this creation of a criminal offence by agents of the state which would not otherwise have been committed by the citizen which leads commentators such as Professor Ashworth (8) to argue that entrapment createsa potential contradiction in criminal justice. It is conceptually incoherent for the citizen to be invited to do that forbids law him law. do by the to those the which chargedwith upholding The police are given special powers and resources to investigate and detect clime and it is arguably a serious misuse of the conditions on which the police are granted those legitimacy (i. the powers e. on which exercise of those powers rest) when police or their agents encourage the commission of criminal offences in order to trap innocent for Those being the citizens. police powers and resources are arguably not employed for by in Parliament. S. Uglow they purposes which were granted a critique of the Liberal has "Policing Society", growth of proactive policing, commented that, (9) "Proactive policing raises the problem of the boundaries of legitimate police action. From the standpoint of liberal its immediate (or the analysis only commission of an offence fairness suggests threat) should justify active intervention ... that policing should be reactive, that is that intervention should occur only in response to the committing of a criminal offence or breach of the peace or the immediate It is these. a yardstick which apprehension of one of reduces the possibility of arbitrary and discriminatory policing and emphasizes two salient characteristics - that is be it that policing should minimal and a public service."

The indiscriminate

and excessive use of entrapment as a particular proactive technique may endanger the legitimacy on which police power and powers rest. Despite the approving views of the Divisional Court the relatively mild proactive

did incur large in Williams DPP technique used v a measure of academic criticism: is Given 7 (involving Chapter that thesis. this a persuasion) entrapment verbal of see from heaven' DPP Wiffiams 'manna than technique the v much more potent proactive be increase the to then proportionately when concern can expected public operation,

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by The is is the creation of crime police entrapmenttechnique not cautiously used. Potentially an obvious contradiction of the social terms on which police legitimacy discussion in However, is this the there rests. point a serious complication at on the for the police are charged with the duty of securing acceptability of entrapment evidenceof seriouscriminality. It may be the casethat successfuldetection and the procuring of evidencefor use in be dependent form in to the court convict guilty may on some of police participation the activities of criminal gangs and associations. This activity may involve encouraging the commission of offences with a view to securing evidence of the gang's criminal activities. The use of entrapment in this context, far from undermining the mandate on which police power and powers rests, may actually be required by that mandate. Roskill L. J. commentedin Rv Underhill (1979) (10) "There can be no doubt that in these days of serious criminal offences, whether of a terrorist character or of drugs hard in trading widespread whether or soft, the task of the forces of law enforcement are difficult indeed we have had casesin this court where gangs ... dealing in hard and soft drugs have had to be infiltrated. It is a recognized and legitimate means of detecting crime bringing justice infiltration the to that and guilty people has long been by That take the shall place. recognized for be done be it to courts and would wrong anything or by hampered being this said court which proper means detection for infiltration used of serious crime. and That cannot be too strongly emphasized."

At times of grave public concern about the activities of organised criminality in the drug forms trading terrorism area of and smuggling, or of criminal fraud, police be driven as much by public demands as by, as Uglow reliance on entrapment may (11) suggests, specialist police squads defining their own objectives. Indeed far from introducing a contradiction into criminal justice, as Ashworth suggests, entrapment may, when used appropriately, serve the aims of criminal justice. Lustgarten in an Criminal Police The Substantive Law" "The (12) entitled comments, that article and including entrapment to combat use of certain oppressive proactive police methods the illegal drugs trade, " is the inevitable price society pays for the creation of ... be The they such offences; cannot enforced otherwise. police are simply adopting rational techniques given the job the legislative have imposed upon them."

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Lustgartenýspoint is that in obtaining evidence, for example, about illegal drug supply the police cannot rely on the usual sources of information for there is usually no drug Proof identify to the to of victim supply offender. complain of the crime nor normally demandsthat the suspectbe identified in possessionof substantialamounts drugs. Proof of this requires active surveillance and/or use of entrapment to of Drugs Act Section Misuse 1971 4; the the the establish of offence under elementsof the criminal prohibition on the supply of controlled drugs. Lustgartencommentsthat if society doesnot wish the police to rely on proactive methods of enforcementsuch "inherently as entrapment and which are and unavoidably oppressive", then society drug incentive therefore the on the police to should not criminalise abuseand remove is detection. However, to this a contentiousconclusion. resort proactive methods of First of all it is by no means clear that the illicit drugs trade does not have genuine victims whom society may wish to protect. Indeed, the extremely severesentences judgements by drug importers Court Appeal to the of applicable established guideline in Aramah (1982) (13) and Bilinski (1988),(14) are only explicable on the basis that drug supply is a victimising crime. As Ashworth comments, "The only way of placing heroin importation high on the is to adopt a strong paternalism scale of relative gravity least indirectly " it (15) to and regard at as a victimising crime. These victims may not be willing to report their suppliers to the police but they can be decriminalised drug if Secondly, there use was even viewed as victims nonetheless. forms of criminality which would require police surveillance and would remain other infiltration including the use of entrapment to successfully detect. 'Me ongoing terrorist threat from various sources, domestic and foreign, is an obvious example of a form. of criminality which may require police measures which are "inherently and form fraud be Organised of may another criminal unavoidably oppressive". its threat. to criminality which requires proactive policing as a successful response Organized football hooliganism has been combated by police use of surveillance and infiltration.

Therefore Lustgarten is probably overstating his case when he comments,

(16) drugs have decriminalise it to chose would which society -a force. " different police of sort a very

The point can also be made that the use of proactive methods may be actually demanded by the concern of citizens in certain areas or urban centres. In these urban in burglary a or sexual assault such as street robbery or crimes specific where areas 312

levels in has then the public place police responseto public reachedcertain alarming demand for action may have to adopt tactics such as surveillance and entrapmentof the prolific offender or offenders. Indeed, the selective and targeted use of surveillance and trickery/entrapmentas a meansof combating street robbery and drug dealing may be adoptedas an alternative to heavy reliance on stop and searchpowers disastrous Operation in Brixton. Swamp'81 the given consequencesof However, police entrapment of the unwary innocent or even police entrapment of the former offender or those suspected of having certain 'criminal' tendencies crosses the line into what is improper and oppressive police behaviour. This not only does an injustice to an individual but is a serious misuse of police power; as Robertson comments, it is (17) " unjust to expose an individual to the ordeal of trial and ... punishment for actions the like of which he or she would not have undertaken without calculated and persistent temptation by Government agents." and persuasion

This reflects the heart of the entrapment definition formulated by the 1929 Royal Conunission on the Police. The focus is on whether the individual would have in the committed offence question without the pressure or encouragement of the factor is in determining A their whether entrapment police or agents. crucial is is the whether acceptable or not acceptable entrapment aimed at ongoing having intended those criminality or criminal activity or merely at suspected of in indeed It is 'inclinations' that or not so suspected submitted efforts certain at all. the US Courts (18) to distinguish for the purposes of their entrapment defence between those without predisposition to commit the offence and those who can be determined to have had the predisposition to commit the offence is to miss the main distinction. having is irrelevant The is that point and an point a predisposition to dangerous. in itself itself is in not criminal nor socially conunit a particular offence The criminal law is aimed at criminal acts or intentions which have manifested themselves in certain preparatory acts to criminal acts, the law is not concerned with thoughts or dispositions. Therefore to limit an entrapment doctrine to those without a for is become the the to testers of virtue to police offence commit predisposition detection The the and prevention of crime. rather than an agency concerned with defence of entrapment offers virtually no protection to anyone with a subjective is least The that to temptation at able arrived resist a person situation record. crff=al subjected to the greatest temptation. be the excused. offence will predisposed to commit is lawfully

313

On this view only those not

As Gerald Dworkin has commentedcritically on the U. S. position: "... becausethe dominant opinion in the SupremeCourt has favoured the subjective test of entrapmentand most defendantshave a criminal record which makesit difficult to demonstratelack of predisposition, the entrapment defenceremains limited in scopeand rarely usedand even less rarely successful." (19) The correct distinction it is submitted is between entrapmentaimed at those already engaged in or intending to engage in activity of a similar criminal nature to the believe is in those there to entrapment,and reasonable who are engaging no suspicion or are about to engage in criminal activity. The first situation here is permissible latter involves the the use of oppressive and therefore entrapment, situation illegitimate entrapment. Evidence of predisposition to commit the offence is only relevant then to reasonablesuspicionsof ongoing criminal activity.

The EnOish Cases This crucial distinction is one which in fact English law has already recognised in the has defendant has been the sentencing stage where question arisen whether a who form is convicted as a result of some of police entrapment entitled to a reduction of his sentence. After Rv Smurthwaite (1994) this issue now goes to the adn-iissibility factor 78 in Lord Taylor S. that the the of evidence. commented a exercise of discretion is, it was the officer acting as an agent provocateur in the ... defendant he that the to commit an sense was enticing have he " offence would not otherwise committed?

Another fact mentioned by Lord Taylor is "how active or passive was the officer's This involve " in the might consideration of whether the evidence? obtaining role entrapment was aimed at encouraging an unwilling

citizen to conurdt crime or

whether the entrapment was aimed at ongoing criminal activity, e.g. a police request for drugs undercover involving no other pressure than the request itself. A good Underhill behaviour in Rv legitimate the entrapment was police example of entirely (1979). The accused was suspected of heavy involvement in cocaine importation and

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by to He supply and asked officer police undercover an supply. was approached drugs. 'Me accusedsupplied a quantity of drugs in return for a large payment of in J. Court L. Roskill He by the then the of was money arrested. undercoverofficer. Appeal refusedto mitigate his sentencebecauseof the alleged entrapment. Roskill L. J. conimented, (20)

"We have a picture taldng the evidenceas a whole including thesestatementsof a man who was deeply involved in trafficIdng in hard drugs he was ready ... to sell drugsto anybody who would pay large sums of " money. This clearly was not a casewhere the accusedwould not have committed the offence bad the undercoverofficer not actedashe did. The police method was more a method of obtaining evidence of continuing criminality and was therefore entirely desirable. indeed permissible, Roskill L. J. commented though that the dividing line between police behaviour which is proper and improper was "a line which unhappily in practice is sometimes not very by draw". kind difficulty be illustrated An to this reference to example of of easy can the case of Rv Perrin (2 1) Court of Appeal 1991. Perrin the accused and his brother had approached an undercover police officer in a bar and asked the police officer to Kingdom. lorry import in large United in into to the order cannabis quantities supply a The police officer and a colleague met the accused in Spain and supplied a lorry into by into deposited lorry driven The the the the the police cannabis. was which accused UK where at a meeting point on the motorway the accused arrived and unloaded the his into At this point the police sprang their trap and the accused was car. cannabis his for being in The Court Appeal mitigated concerned evading of sentence arrested. the prohibition on the importation of cannabis resin from six years to four years. This "was Court Appeal because the the satisfied of element of entrapment which of was Hence, in the present case". occurred it

A-

fact by that to recognise court should reducing the *** be the sentence which would otherwise some extent " appropriate. -

In so doing the Court of Appeal was following earlier decisions of that court in Rv Birtles (1969) and Rv McCann (1972) in reducing sentences where defendants had been encouraged to commit offences that they might not have committed. In Rv

Perrin it is a possibility that had not the undercoverpolice officer agreedto supply a 315

lorry in Spain and turned up with the lorry to smuggle the drugs into the UK from there therein the offence might not have been committed. However, Perrin seemsto have had ready accessto a supply of cannabisin Spain and might have been able to his UK A drugs into the the own accord. clearer example of permissible of smuggle Rv Smurthwaite. It behaviour is the of was clear that the undercover police case his listener kill by to the to a plan conceived officer was merely a passive appellant by There the police, they only provided the wife. was no real encouragementat all for incriminate himself. had inquiries The to the suspect made opportunity suspect death his it intervened the that that the of about arranging wife, was at police point with the undercover operation. For the charge of soliciting to murder Smurthwaite had gone beyond mere disposition to commit the offence to actually seekingsomeone to carry out the plan before the police intervened. There was no element of in entrapment the senseof the police officer encouragingthe appellant to conunit an he have not otherwise committed. At one extreme of the spectrum offence would there are casessuch as Underhill and Smurthwaite in which ongoing criminal activity detected by be is intended trickery which might classed police or criminal activity inaccurately as "entrapment" for the offence would probably still have been involvement At the other end of the the of without a police officer. committed spectrum there are clear casesof totally unacceptableuse of entrapmentsuch as was by in Rv Sang where (22) Lord Salmon outlined it a dishonestpolicemananxious to improve his detection ... hard help tries the with record very of an agentprovocateur to induce a young man with no criminal tendenciesto commit a seriouscrime and ultimately the young man inducement. " to the reluctantly succumbs Although at the time there was no discretion to exclude evidence in this case Lord Salmon suggested such a case may be disposed of with "an absolute or conditional discharge". Of course following Rv Smurthwaite such a case may well involve an following S. 78. discretion Indeed judge's to the exclude evidence under exercise of by decision, Rv Latif Lord Salmon Lords House outlined the recent as such a case of for Lord be the proceedings as an abuse of process. a stay of a suitable case may well Steyn commented that in deciding whether to stay the proceedings because of an (23) unfair use of entrapment, in balance interest in judge the the weigh public must the ... be those that charged with grave crime should ensuring tried and the competing public interest in not conveying the impression that the court would adopt the approach that the end justified the means."

it

11- -

316

What is also objectionable is the situation where the police do target someoneknown to have certain criminal tendencies,but not actually involved in criminal activity of Jacobson is (24), jurisdiction US from the targeting A of the any sort. good example the suspectedpaedophile. The law enforcement agencies encouraged him in an invoking his undercover operation to order unlawful paedophile magazines debatable is This him. case than the a more constitutional rights to encourage be but it is Salmon by Lord the that police should not example outlined submitted "testers of virtue" and should only target those suspectedof involvement in criminal Parker Lord least to those commented activity or at who are preparing comn-dtcrime. in Rv Birtles that it was permissible law enforcement. " for the police to make use of information concerningan ... laid In is that offence on. such a casethe police are already duty it indeed is their to mitigate the clearly entitled, for the consequencesof exampleto protect proposedoffence, the proposedvictim and to that end it may be perfectly proper for them to encouragethe infon-nerto take part in the offence or indeed for the police officer himself to do so." (25)

However, there is a large grey area where entrapment may or may not be acceptable important be disagreement An there this and where question. can reasonable about issue here is where the police learn of a plan by an accused perhaps with a criminal drug to record, carry out an offence, e.g. a robbery or smuggling. The accused may have made only very preparatory measures to effect the plan when the police in an In facilitate by logistical to the undercover operation offer providing support. offence Rv Birtles the police learnt that Birtles while still in prison became minded on his his Tlie Birtles to after release carry out some raid on a post office. police approached "a introduced in Birtles A to as release an undercover operation. police officer was top criminal from London". This undercover officer supplied his car for the robbery his behalf Birtles imitation he infon-ner supplied with an or an working on and either firearm. The accused was arrested whilst he attempted to rob a post office. The Court of Appeal felt that there 11 was a real possibility that the appellant was encouraged ... by the informer and indeed by the police officer concerned to carry out his raid on the post office. Whether or not he have but done it that without again no one can say, would there is, as it seems to this court, a real likelihood that he he to an offence otherwise was encouraged commit which have committed. " (26) would not

317

The problem with the police intervening once they becomeaware of a plan is that by fact in be the the to plan police may encouragingan providing the means carry out been have The is is that there committed. point offence which might not a gap betweena plan and the actual commission of that plan. The degreeof facilitation and issue is then. encouragement a vital

Another difficult and related issue here is where the police target a known user of illicit drugs and tempt him by means of entrapment to become a supplier of illicit drugs; there is a large disparity in offence seriousnessbetween illegal drug use and illegal drug supply. It may be the case that it is illegitimate for the police to try to convert a relatively dangerous into in S. 78 that minor offender case a criminal and should an appropriate be used to exclude evidence from the entrapment here. In Rv Chapman (1989) (27) the defendant who was known to the police as a user of amphetamines, was in prison in connection with some other matter. A detective from the drug squad was introduced into his cell as a fellow prisoner. The detective posed as a drug dealer from another part of the country. In the course of the conversation, as the detective had hoped, the defendant spoke of the availability of large quantities of amphetamine home drug deal in his Eventually Chapman sulphate area. and was arrested set up a for conspiracy to supply amphetamine sulphate. The Court of Appeal commented that,

"... there was no evidenceat all that he was a dealerin as opposedto a consumerof amphetaminesexceptupon this particular occasion. Entrapmentplainly carries considerableweight in the assessmentof sentence basis. " that on

Ibe sentencewas reduced on appeal. Similarly in Rv Shaw (199Q (28) the police targeted Shaw, a known heroin user. An undercover police officer posing as a in house. Shaw heroin The two of them agreedthat met a public purchaser possible Shaw would make enquiries about obtaining a supply of heroin and then contact the Shaw was charged after the trap was sprung with supplying undercover officer. heroin. The Court of Appeal commented, behalf it Shaw Shaw that of was on urged upon us ... is highly have to unlikely indeed committed the offence had he not been persuadednot be it we interposeto say, 318

by any threat of violence or indeed threat of any sort, but by straight persuasionby way of a requestfor assistance. If that had not taken place it said, it is highly unlikely been have committed that this offence would ever fact had Shaw light in the that the who of particularly been and still was to someextent a heroin addict had had drugs indeed himself to taken steps wean off and taken amongstother things the form of getting very " paid employment. well useful and

The court reduced his sentence from six to five years because of the fact of entrapment. It is submitted that it is improper for the police to test the virtue of users iRicit drugs of where there is no reasonablesuspicion that they are involved also in the supply of illicit drugs. However, in cases such as Underhill and Sang the police merely offer money to drugs Sang Lord Salmon As that there obtain or counterfeit currency. observed of , doubt he he "little have forged that to to tried was notes anyone else whom would sell here little The is (29) trap considered safe". police more than an evidence-gathering device in the process of detection of criminality. Even where the police can legitimately become involved in an undercover operation to prevent the commission be longer they to to the of an offence should careful not allow criminal scheme run than necessary to secure evidence of the offence. In the case of Rv Adamthwaite (30) the police leamt of a husband's plot to have his unfaithful wife killed by a killer. fact The in contract potential assassinchosen was an undercover police officer fact There in the the who recorded conversations with were appellant which ensued. three separate meetings between the appellant and the undercover officer before he The Court of Appeal whilst upholding the conviction of soliciting to was arrested. J., Hirst L. the police operation, per murder, commented critically on

faced 11... the the that police while we understand problem does it that we should add seemto us that perhapsthe have bud been in the rather earlier could matter nipped by them once they becameinvolved, which might have in less it than the the to extremes resulted schemegoing did. " eventually

Even for those suspectsset on a criminal course of conduct, constraints of ethical from beyond investigation the the that must prevent police scheme encouraging police The is to the secure evidence of necessary police should not crime. which deepen in involvement to their a person encourage criminal activity unnecessarily

319

degrees There if is that that even are of corruption of path. person already set on personality by virtue of involvement in seriouscriminality dependingon the degreeof involvement in criminal activity; therefore as a matter of ethical practice the police should not encouragea personto becomemore deeply involved in criminal activity if that is not required to securevital evidenceof the crime.

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Footnotes to Chapter 9 Entrapment - The Theoretical Objections

English law does not allow for the taldng of intimate samples without the S-62 PACE; however,, S. the of consent of suspect - see under 62 (10) an be drawn from inference trial at adverse may a refusal without good cause to Note S. 55 PACE the to conduct an power supply a sample. also under of intimate search without consent in certain circumstances. (2)

Rv Sang [1979] 2 AU ER 1222 at p. 1226. However, as Choo points out "Official incitement of an offence stands in a completely different position from incitement of an offence by a person unassociated with the executive. The executive has a duty to uphold the law and to prevent crime. Accordingly it is contrary to the very purpose of the law for the executive to take a hand in bring innocent individual". to to to crime and seek conviction an otherwise Andrew L-T Choo, "Abuse of Process and Judicial Stays of Criminal Proceedings"' 1993 at pp. 152-153.

(3)

Ridgeway vR (1995) 129 ALR 4 1.

(4)

Michael 1. Stober, "Entrapment in Canadian Criminal Law"' 1985, p. I.

(5)

Reiner and Spencer, "Conclusions and Recommendations" in "Accountable Policing Effectiveness, Empowerment and Equity" edited by R. Reiner, S. Spencer 1993, at p. 176.

(6)

J. D. Heydon., "Ibe Problems of Entrapment" [1973] Cambridge Law Journal For Sir William Harcourf Chapter 8. 268. s views see at p.

(7)

G. RobertsonQC, "Freedom, the individual and the law" 1993 at p.64. This does not mean to say that it is wrong for a police officer to fail to warn a he is In DPP to that potential v about commit a offence. offender potential Wilson. "The Times'12th February 1991, the Divisional Court held that there duty no was on a police officer to warn a potential offender of a potential had do In it the to the so. case officer ample opportunity offence even when was establishedthat as a consequenceof an anonymoustelephonecall a police be he to to on the move at any a place where expected a car officer went driver drinldng. fact he had been In the police who minute and would catch a before driven for hour the car was away and the over an officer waited been behalf breathalyzed. had It of the submitted on offender stopped and defendant that it was oppressive behaviour by the police officer to act on be for lie information to to around a comer wait and an offence private 78 Court Section The Divisional that rejected of the an argument committed. Police and Criminal Evidence Act was appropriately used by the justices to following Ihe Bench Divisional Queen's the the arrest. evidence exclude all Court allowed the prosecutor'sappealagainstthe decision of SpaldingJustices discretion Section 78 1989 19th December to their exercise under and on blood/alcohol decision in This the analysis. seemscorrect excludeevidenceof be for for it may oppressive a police office to encouragea while principle have they to would not otherwise committed, the person commit an offence be folly to their own or their police cannot reasonably expected wam othersof potentially criminal conduct.

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(8)

A. Ashworth, 'Me Criminal Process" 1994, pp. 93-96.

(9)

S. Uglow, "Policing Liberal Society" 1988, pp. 13-14 and at p. 145.

(10)

Rv Underhffl (1979) Cr. App.R. (S) 270 at p.272. S. Uglow comments at p. 13 of "Policing Liberal Society", "The increasing development of squads to investigate specific areas show a new direction, a initiating investigation towards targeting their own areas of movement With management techniques such as these the police define their concern. different in terms to those suggested by the lower profile of the objectives " policeman. community

(12)

L. Lustgarten, "The Police and the Substantive Criminal Law" [1987] Vol. 27 British Journal of Criminology, page 23 at p.24. In Weir y Jessop (No. 2) the Scottish High Court considered the admissibility of evidence obtained when for house an undercover police officer caUed at a cannabis saying and asked he had been sent by the brother of the occupier of the house. The High Court held that evidence of unlawful drug supply obtained through this deception Lord "This Justice Clark was rightly admissible. commented, was a very important case becausepolice officers investigating possible contraventions of the provisions of the Misuse of Drugs Act 1971 frequently used the method by D. C. Dinnen in Jessop 2) SCCR Weir (No. (1991) this employed case". v 636 at p.641.

(13)

Rv Aramah (1982) 42 Cr. App. Rep. (S) 407. Since 1993 trafficIdng in large has been death the quantities of narcotics made penalty subject of a potential in U. S. Federal Law: see R. Hood "The Death Penalty" 1996, p.61.

(14)

Rv Bilinski (1987) 9 Cr. App. Rep. (S) 360.

(15)

A Ashworth, "Sentencing and Criminal Justice", Second Edition 1995, at p. 106. L. Lustgarten, "The Police and the Substantive Criminal Law" op. cit.

G. RobertsonQ.C. "EntrapmentEvidence:Manna from Heavenor Fruit of the PoisonedTree?" [1994] Criminal Law Review 805 at p.807. (18)

See the U. S. decision Sherman v U. S. (1958) 356 U. S. 369.

(19)

Gerald Dworkin, "The Serpent Beguiled me and I Did Eat: Entrapment and the Creation of Crime" (1985) Law and Philosophy 4, p. 17 at p.23.

(20)

Rv UnderhiU (1979) Cr. App. R. (S) 270 at p.274.

(21)

Rv Perrin (1991) 13 Cr. App. R. (S) 518.

(22)

Rv Sang [ 197912 All ER 1222 at p. 1236.

(23)

Rv Latif, Rv Shahzad, Reported at [1996] 1 AU ER 353.

(24)

For a discussion of the Jacobson case (Jacobson v U. S. 1992) see G. Robertson "Entrapment Evidence: Manna from Heaven, or Fruit of the PoisonedTree?" [1994] CrimirW Law Review, 805 at p.814.

(25)

Rv Birtles [ 196911 WLR 1047 at 1049. 322

(26)

ibid at P.1049.

(27)

Rv Chapman(1989) 2 Cr. App. R. (S) 222 at p.225.

(28)

Rv Mackey and Shaw [1992] Crim L. R. 602.

(29)

Lord Sahnon in Rv Sang [ 197912 All ER 1222 at p. 1236.

(30)

Rv Adamthwaite (1994) 15 Cr. App. R. (S) 241. Another clear example of justifiable police trickery to obtain evidence of ongoing criminality perfectly is the operation reported in the case of Rv Angela Edwards (199L 13 Cr. App. R. (S) 662. Ile appellant pleaded guilty to six counts of having obscene for hiring for business She the ran a rental out or the sale of publications gain. from flat. had her She in placed an advertisement council pornographic videos Swedish, "Adult VHS German tapes, magazine which read video a and American L10.00 each, view before purchase facility. Strictly adult callers bought this to address and only .A police officer acting undercover went three pornographic video tapes for a total of X30.00. Later officers with a search warrant seized a large number of video tapes. See also the case of Rv Philip James McGuigan (1996) 2 Cr. App. R. (S) 253, for another example of involved in to trick an undercover police obtain evidence against a person child pornography.

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CHAPTER 10 CONCLUSION Police Interrogation

Defended PACE under

This thesis has adopted a position of the cautious endorsementof the practice of detaining for questioning of suspectsunder the PACE scheme,on the assumptionthat the scheme is given full force by the introduction of a mandatory tape recording for requirement confessions to the police and other investigative agencies, and breach judicial to of continued willingness exclude confession evidence where important provisions of PACE has been significant and substantial. Interrogation have is PACE to tends under a method of obtaining generally reliable evidencewhich from high is the a police a evidential value and method also reasonably efficient from is resourcesperspective, and also efficient a processperspectivegiven that a is it followed by is Of the to course confession made often police a guilty plea. do, from that custodial the to possible start premise as some commentators interrogation is inconsistent with the presumption of innocence and is therefore illegitimate. It could be asked why should the citizen be forced to undergo an inherently coercive experiencewhich may be of quite lengthy duration when there is facie has 37 (2) he Section that not even a prima case committed a criminal offence? for have "reasonable PACE that the grounds" only requires custody officer of believing that the detentionof an arrestedpersonis Ifnecessary to secure or preserve evidence relating to an offence for which he is under arrest or to by him. " questioning obtain such evidence For Sanders and Young this principle in PACE is ftmdamentally wrong, (1) "From the due process perspective it is the power to interrogate which should be questioned. Subj ection to involuntary interrogation during involuntary, lengthy detention is inconsistent indeterminate and partially in innocence, the real sensethat the with presumption of the innocent can be made to appear to be guilty. " However, the presumption of innocence may be understood as Sir Rupert Cross fies in burden it the proof a criminal of understood purely as a statement about where (2) case. William Twining (3) has disagreed with this limiting of the presumption of innocence

324

to the criminal trial process since it is an important general principle of our political is innocence if However, the somewhat compromised morality. presumption of even by the institution of detention for questioning, that compromise is accepted in this Our society accepts that citizens may have to bear certain unpleasant further important societal goals such as detecting crime. The in to experiences order

thesis.

important point is whether those practices that may impinge on citizens are operated in a fair and non-discriminatory manner by officials. The Police and Criminal Evidence Act allows for the detention of a citizen for questioning subject to important "reasonable safeguards of suspicion", the custody officer concept as a buffer against the automatic detention of those under arrest and the plethora of protections once detention for interrogation is authorised. It is also possible to point to the practice of the remand system as a far more serious interference with liberty than custodial interrogation that society seems to accept as a burden that the innocent citizen may have to bear. Although custodial interrogation is 'inherently coercive' its coercive effect can be substantially mitigated by effective protection for the suspect in the police station such as time limited and reviewable detention, ready accessto properly qualified legal advisers, the overseeing of a 'custody officer', properly recorded interrogations and the right to inform relatives of the fact of detention and the place of detention. The problem with the old pre PACE regime was not that it allowed for lengthy custodial interrogation but that there was very little in the way of effective checks on the misuse of police power. The suspect was by and large often at the mercy of the police. This system may have produced results that would be unobtainable under the much stricter PACE regime; as Rose comments (4), "Despite its pitfalls the rigorous interrogation which investigation characterized criminal under the old regime was capable of producing valuable results; safe convictions in caseswhich aroused great public concern." As Rose comments, quoting Judge Laughland, some of those convictions would be lost today since the tactics would be considered "oppressive" (5) and hence any 76 be (2) (a). by Section such methods would excluded under confession obtained However, not only is oppressive interrogation in itself offensive whatever the but investigated the the consequences of a regime of offence seriousness of individual in be horrific interrogation terms wrongful of can not only unregulated fabricated in but the terms the of of also repute coerced or on confessions convictions

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criminal justice system itself when those miscarriagesof justice are exposed. There may then be sound reasonsfor the criminal process to protect its own repute and hence its proper functioning to insist upon a closely regulated and enforced scheme for criminal investigations including interrogations. If the quality of police evidence in the investigative stage can be enhanced,even if it cannot be guaranteed,by strict procedureswhich are enforced through the exclusion of evidence then it may not be necessaryto impose strict quality control at trial for police evidencein the form of a for corroboration rule confessionsor a corroboration rule for identification evidence. If the system can help to control the conditions in which police evidenceis gathered level to so as produce an acceptable of reliability in the long run of cases,then the system may be able to resist law reform calls for corroboration rules or other strict admissibility testssuch as a straightforward 'reliability' test for confessions. Those who oppose the principle of police custodial interrogation or at least argue for a much reduced role for it have to answer how is this to be achieved without serious for detection the consequences and proof of criminality? Given the centrality of interrogation to the criminal process, alternatives suggested to fill the gap if custodial interrogation is to decline in use can appear rather strained and even unacceptable. Sanders has written that me way of significantly reducing recourse to custodial interrogation is his proposal that, "Consideration should be given to putting the onus in defendant. intent Thus the police would to the relation on interrogate to to secure evidence of intent to only need commit the crime in question if the circumstances created doubt signdficant about the presence of intent. Although this might place pressure on suspects to talk to the police in police stations it would change the emphasis from the police trying to construct their case as now to the suspect constructing theirs, returning some control to suspects." (6) This proposal to reverse the onus of proof in relation to the element of intent of decrease interrogation to to secure evidence criminal offences, so as police reliance on fundamental be intent through the to contrary of a confession, would of course by in Viscount Woolmington Sankey the v adversarial system as stated principle of DPP. (7)

"Where intent is an ingredient of a crime there is no onus defendant the to prove that the act alleged was on English Criminal Throughout the the accidental. web of law one golden thread is always to be seenthat it is the duty of the prosecutionto prove the prisoner'sguilt... "

326

There is no valid reasonwhy a confessionobtained with full compliance with PACE discharge burden in function legitimately to the prosecution's relation should not so as to the intent elementin criminal offences. There is evidenceto suggestthat custodial police interrogation is peculiarly suited to the eliciting of confessional statements interrogation that the given making of a confession under police can provide immediate psychological benefits to a suspect. Gudjonssoncommentson this point, (7b) if

faced interviewing people who are with police officers ... them about a crime and uncertain about what is going on, once they confess the situation is a little clearer for them. They know that the police are going to stop asking questions."

It is plausible to argue that confessions reduce anxiety because they create an acceptable level of certainty about the future. This is not to say that confessions are a universal panacea to the problem of the proof of criminality. The obvious point is that some suspects who are in fact guilty do not confess under interrogation especially if that interrogation is closely regulated and is interrogation PACE the controlled as under regime. Moreover, this group of guilty do suspects who not confess under interrogation include some very dangerous leaders hardened terrorist to criminals such as or professional criminals who are interrogative questioning, and in the case of terrorists often trained in counter interrogation methods. The degree of threat these groups represent to society might entail a response in the criminal justice system in terms of developing an alternative systematic way of successful prosecution of these kinds of offenders given that the usual systematic approach to suspects, namely interrogation does not usually produce The in has been jurisdictions to rely on approach confessions. adopted various (indeed an overreliance in some jurisdictions) the testimony of accomplices more known kind 'supergrasses. A this popularly as reliance on of evidence to obtain convictions of organised criminals or terrorists is not surprising. The evidence of defendant's best in information is involvement the next a source of about accomplices from is indeed The a confession. a accomplice often an observer or an offence apart in defendant is The the that the same or similar offences charged with. participant leaders of organised crime often do not participate directly in criminal offences so there is often no eyewitness identification evidence nor forensic evidence that the be Accomplice the only viable source of upon. rely evidence may prosecution can fails interrogation if The here to elicit a confession. method of the supergrass proof has been used in the USA to deal with organised crime leaders, in Northern Ireland

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between 1982-1986 to obtain the conviction of harden terrorist suspects and in England principally'in London, to deal with gangs of organised professional criminals In in 1970s 1980s. in the and early who specialised armed robbery all three contexts the need for supergrass evidence stemmed from a failure of interrogation to produce Of English the context Greer has confessional evidence against certain suspects. written, (8)

"The evidencesuggeststhat the appearanceof the English Supergrassprocesswas connectedwith a rise in the incidence of seriousorganisedcrime, principally in the London areaand dealing it that on official perception existing methodsof with ineffective. Reflecting Criminal Law this the were mood Revision Committeestatedin its eleventhreport in 1972, 'There is now a large and increasingclassof sophisticated in professionalcriminals who are not only sldffw organising their crimes and in the stepsthey take to avoid detection but are well awareof their legal rights and useevery possible if to means avoid conviction caught'."

One of the methods used by professional criminals to escapeconviction if caught was in for Hence CLRC to the a persistence refusing answer police questions. argued inferences be drawn from be to to trial appropriate adverse allowed at a refusal to It took twenty-two years before this proposal was legislated answer police questions. by S.34 of the Crin-dnal Justice and Public Order Act 1994. This is not the place to discuss the merits or otherwise of this deeply controversial change to the old common law position stated in Hall vRG 97 1) per Lord Diplock. (9) However, an overreliance on accomplice testimony can bring as much if not more disrepute on a legal system than overreliance on confession evidence. This is what happened in Northern Ireland after the experience of supergrassesin the Diplock court have Doran Jackson system; as and commented, (10)

"The supergrassphenomenonattractedparticular odium to the Diplock systemas the sheernumber of defendantsinvolved in the processseemedto convert ordinary trial proceduresinto " extraordinary spectacles.

In England the repute of the criminal justice systemitself may not have been affected by the use of supergrasstestimony but heavy reliance on that form of evidence declined 1970s in to the the secure conviction of professional criminals as prevalent juries becamemore suspiciousof supergrasstestimony and judges took the view that 328

in England based Criminal justice. trials mainly such evidencepoisoned the well of m the testimony of supergrasses are now rare events. If a confession cannot be obtained from a suspect and accomplice testimony against the suspect in particular types of criminal casesbecomes discredited in the courts as a be infiltrate there to to reliable source of evidence may recourse covert operations drug gangs and terrorist organisations to provide evidence. Rose (11) in his recent book "In the name of the Law", has commented on this phenomenon of covert distrust operations arising out of a with accomplice evidence, "A tip-off from an informant may be by far the most common way of making the first detection of a professional organised but displayed by in the the crime reluctance courts accepting the evidence of supergrassesmeans hard evidence has to be has been by 7111e provided widely other means. solution which by lies Regional Crime Squads the adopted with the growing use of undercover police officers. Acting on informants' intelligence the undercover teams pose as criminals trying to arrange a "buy" for the drugs or counterfeit notes. The undercover agent secretly tapes whatever transpires and foflow. " arrests swiftly

J. Morton corroborates this point that there is an increasing number of undercover operations involving police officers because of the difficulties with inforrners. He (12) undercover quotes an officer,

"Courts seemto be much more comfortablewith undercover officers than with infon-ners." Potentially this covert taped evidence by a police officer is the best evidence of all; a taped conversation with a criminal in which the criminal discloses details of his in Rv Smurthwaite (e. (1994) the tape g. see criminal activity or criminal conspiracy is not tainted by claims of unreliability as the evidence of an accomplice often is; indeed, confessions as well are often refuted by the defence as unreliable. Moreover, from legal is taped challenge than a covert conversation potentially more secure a before it is hurdles 78 S. 76 S. has to the surmount as well as confession which during The into taped a covert operation are conversations made evidence. admitted if be S. 78 (i) likely the police officer working undercover to under excluded only in involvement the to a criminal activity suspect's ask questions about attempted by C Code (ii) the the or entrapped on questioning suspects; of unencumbered Rv BryceR (i) Christou in the way. authorities v on point are suspect a significant

329

(ii). Rv is Smurthwaite the point on and authority However, apart from thesepoints of potential inadmissibility covert operationscannot be consideredto be a seriousreplacementfor interrogation as an investigative strategy be Covert tend to the very costly and time consuming of operations police. potentially involving months of surveillance and covert contact with the suspect. Obviously these are major constraints on the number of operations which each importantly, Far can mount. more regional squad covert operations are potentially dangerousto individual police officers involved in them especially if the police have infiltrated dangerouscriminal gangsor terrorists when the consequencesof discovery be fatal interrogation in Of the to of may officer concerned. course contrast,police is in the to suspects police station presentsa negligible risk police officers and also do have in in terms cost efficient of achieving results; covert operations contrast not the sameguaranteeof successin the majority of cases. Tberefore covert operationsas in their a way of gathering evidencewhatever usefulness particular cases(which can include somevery serious cases)cannot operateas an antidote to the criminal justice forms Moreover, of criminality are system'sreliance on confessionevidence. many be to the to not susceptible use of undercover operations which require mainly directed at criminal conspiraciesor ongoing forms of criminality to achievesuccess. Despite all the controversy about the role of confessional statements in miscarriages from full PACE justice the a normal protections of of a confession obtained under least TIle is the reliability suspect one of problematic of all sources of evidence. defects of identification evidence and accomplice evidence hardly need further has Moreover, the testimony attracted morality of reliance on accomplice elaboration. from has Doran Sean commentators. pointed out that the old mandatory concern by for Criminal 32 S. (abolished the of corroboration warning accomplice evidence Justice Act 1994) reflects arguably a moral concern about accomplice evidence, (13)

"... the warning is more than just a safeguardagainst it is potentially unreliable evidence, also an expression This moral of moral concernabout accomplices'evidence. has is the accomplice element perhapsstrongerwhere bought immunity or struck somekind of dealbut even in feel do 'easy about not particularly other circumstanceswe basis. " this convicting somebodyon Jacksonand Doran (14) in their study of the Diplock courts comment, "Ibe moral concerns derive from justifying the conviction have by immunity the to grant of others who may of some just heinous. " committed crimes which are as 330

There is no comparablemoral concern about convicting a person on their own nonis important Confession evidence also a more sourceof coerced confessionof guilt. forensic than is in the to which only evidence available process a evidence criminal before, is noted as confession evidence a small number of cases. whereas systematic ) forensic However, although overall source of proof of guilt. evidence is only have dramatic in it impact in 2% may certain classesof available about of cases a forensic DNA be the tool cases; role of as a relatively new should not overlooked here; as Walker and Cram comment, (15) "In qualitative terms DNA profiling has already generated a considerable impact upon the investigation of particular offences especially murder and serious sexual assaults. This usage is likely to increase as it has been estimated that DNA material is recoverable from the victim in 60 per cent Thus boost is the these technique to of cases. while not about detection help board, it the to obtain crime rates across may in but the convictions relatively rare nonetheless serious " the category of offences against person.

The strict rules of the law of criminal evidence render virtually worthless as items of proof certain kinds of information which the police and prosecuting authorities may take into account in investigating offences and deciding whether to prosecute or not. This material may not however, be usable as evidence in a criminal trial because of the strict exclusionary rules. Confession evidence obtained through interrogation may be the only way to close the gulf between what is known about an offender and what is admissible as proof of guilt. The relevant exclusionary rules here are primarily the hearsay rule which would prohibit the courts' assessmentof much information from informers, upon which much of the detectim of crime is based, but which is ) inadmissible as proof of guilt unless the informer himself testifies in court; a here is The the similar relevant relatively unlikely scenario. other exclusionary rule fact evidence rule; the police may feel sure that they have arrested the right individual for a crime because of similarities in the commission of the offence with the previous convictions of that individual, yet those previous convictions are subject to a high evidential hurdle in the form of the probative value/prejudicial effect test be 'exceptional' Boardman (DPP (16). 1974 their therefore will only v admission and (17) has improved the chances of The decision of the House of Lords in RvP into have being Decisions RvP indeed admitted evidence. after previous convictions has for decision liberal test the that produced a more previous admissibility shown facts. (18) convictions and other similar

331

However, even the admissibility of previous convictions which do bear a similarity by likely. facing is is Again defendant the the no means certain or even a with charge between interrogation the through may close gap confessionobtained what the police know and what is admissible in evidence. Obtaining confessionscan also alleviate demandsthat previous convictions be readily admitted into guilt, which opens the hence great risk of prejudice and wrongful conviction of considerablenumbers of defendants. If it is thought that it is interrogation by the police which is the more feature be hearsay then to the radical reform objectionable could made rule or the rule However, this would entail serious of previous against adduction convictions. dangers; the evidenceof informers not in court to testify would poseobvious dangers be of unreliability which may not satisfactorily met as a question of weight of the before jury; inadmissibility in the a rule of save exceptionalcircumstances evidence be justified here. It would also produce problems under Article 6 of the may well E.C.H.R. becauseof the lack of opportunity to cross-examinethe witnessesagainst the accused. The great risks of prejudice to defendants caused by any further fact has been It is the to. relaxation of similar rule referred proposed already therefore to disagreerespectfully with the opinions of Sir Frederick Lawton who has for the greateruse of previous convictions in court to counter the problem of argued fabrication former Lord Justiceof Appeal connnents, the police of evidence; "There would be much less temptation for police officers to fabricate evidenceif more usecould be madeof previous during " (19) trial. convictions a

This it is respectfully submitted is a wrongheaded argument. It is no doubt the case that the police are frustrated when they are certain a suspect is guilty but have little because hearsay him the the rule or of operation of admissible evidence against fabrication fact key However, the to of evidence rule. stamping out police similar for is the the taping of all confessional statements and a strict regime on evidence fighting it both fabrication training of the police and close problems, with other least in by investigations at serious criminal senior officers supervision of criminal cases.

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The Importance of Judicial Decisions upholding the PACE regim

This thesis has illustrated how official attitudes to police interrogation have moved from outright hostility in the nineteenth century to official tolerancein the twentieth by judiciary in 1964 the century pre admitting often the fruit of and connivance interrogation, to a situation of legal authorization of interrogation from 1964 with Rule I of the revised Judges'Rules, to positive encouragementto the police to utilize interrogation in the 1984 Act with the establishmentof an institutionalised systemof detention for questioning. One major impetus to this changein official attitudeshas been the great increase in the amount of crime since the late 1950s but possibly especially since the early 1970sand the still growing phenomenonof organisedand professional criminals. Custodial interrogation in tandem with relatively new techniques of the targeting of prolific offenders through covert operations is a relatively efficient way of obtaining evidencein the face of this tidal wave of crime. It is important then that the legitimacy of detention for custodial interrogation is fruit that the maintained and of that process, namely confessional statements main be in to themselves without the encw-nbranceof continue admissible as proof of guilt has important in The Court Appeal to role play a corroboration requirement. of an this regard in upholding PACE and the Codes of Practice through decisions which breaches deliberate important PACE that emphasize of provisions of particularly breach are likely to lead to the exclusion of evidence from the criminal trial. Decisions such as Rv Keenan, Rv Samuel, Rv Canale can be viewed solely from a "due process" Perspective ensuring procedural fairness for defendants but it is benefits. decisions have long "crime that these term control" also useful submitted These decisions excluding evidence because of important breaches of PACE by the from by help legitimacy interrogation the to attack critics of custodial maintain police from interrogation the police or to the role completely remove who would seek for For detain interrogation. limit the the to example, police ability of substantially the Haldane Society of Socialist Lawyers proposed in 1982 (20) that the police must bring a charge or release the suspect after a maximum of 12 hours from the time of be it Society Haldane The that to this made clear considered a period was not arrest. but for detention merely time to allow the police to obtain questioning period of identity T"his the the proposal and collection of evidence. suspect's confirmation of detain limited include have the to police current power powers which seriously would for four days. for to up questioning suspects

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A system of detention for interrogation which is open to outside scrutiny and which less is due vulnerableto criticism processprotections much allows the suspectvarious than a closed secret system of interrogation. The Haldane Society proposalswere interrogation by Judges' in 1982 the the time old regime of governed made when at a Rules had beenthoroughly discreditedas completely open to police abuse. The secondmajor benefit to crime control concernsthat Court of Appeal decisions is PACE through the to safeguard the exclusion of evidence confers upholding for in themselves and stave off calls a corroboration admissibility of confessions S. 76 2(b) A than or stricter criteria of admissibility requires. parallel of a requirement kind may be drawn with the issue of identification evidenceand its treatmentby the law of evidence which was a major source of concern in the 1970s as wrongful identification led to notorious cases of miscarriages of justice. Tbe Devlin Committee (21) which looked at the issue in 1976proposedquite a radical reforrn of the law of evidence on identification evidence, recommending that identification be found in itself The Lord to evidencewould only exceptionally able a conviction. Chief Justiceand four other judges of the Court of Appeal in Rv Turnbull (22) a case forestalled Devlin Report the Devlin Committee proposalsand any the shortly after for limitation identification laying down by trial guidelines statutory on evidence judges on how to treat identification evidenceand how they should warn juries how to it inherently 1be Court Appeal this unreliable evidence. of made clear that non weigh lead by judges Turnbull the trial probably to the of guidelines would observance decision However, in Turnbull the what also achievedwas quashingof convictions. to guaranteethe continued admissibility of such identification evidence as proof of before jury if identification be itself. Even in there the put poor quality could guilt fall far Crucially this short supporting evidencecould was other supporting evidence. Court in 'odd 'corroboration' the to the strict sense; coincidences'could, according of is Turnbull Rv 'supporting' Appeal, the a good necessary evidence. provide of for limited how judicial the treatment of to principles strict adherence example of There for kinds disarm are those calls more radical reform. of evidence can certain The Law", in "Freedom, Individual Robertson (23) the who and commentators,e.g. identification for for the admissibility of all a strict corroboration requirement call likely does but the time this nor acceptable not appear at present a evidence is be legitimately ignored possibility; one reason why such reform calls can insistence judicial Turnbull Appeal Court the to on guidelines. of adherence continued The Court of Appeal in Rv Tumbull said that any law that said no person could be lead justice to to to alone would serious evidence and visual affronts on convicted law for is just It (24) the that maintenanceof and order. arguable as a consequences 334

lead justice for identification to to would affronts evidence corroborative requirement for indeed confessions, more so, since so would a corroboration requirement confessions are a much more regular source of evidence to the proof of guilt than identification evidence, although identification evidence has an important role to play in the proof of 'street offences' such as robbery, pickpocketing, disorderly conduct, important in Another way of shoring up public confidence the reliability assaults etc. is judicial insistence identification that the way that evidence is gathered of evidence follows the statutory procedures established in Code D of PACE. There has been from judicial here the pre PACE era when police breach of something of a sea-change the Home Office circulars on identification parades would only occasionally lead to the discretionary exclusion of identification evidence. Nowadays significant police breach of Code D is likely to lead to the exclusion of the evidence under S.78 of PACE; as the Court of Appeal recently commented in Rv Hickin and others

"Identification evidencecould give rise to problems with which everyonewas now familiar. It has a uniquepotential for injustice and identification procedures,formal or informal, be in knowledge the that should an must conducted identification be challengedthe court would wish to scrutinize the procedurewith very considerablecare and caution." (25)

If the Court of Appeal can make it clear that the current regime of interrogation is being upheld then a potentially large contribution is made to uphold the legitimacy of the current system an important element of which is the possibility of conviction purely on confessional evidence. Indeed to allow for conviction on confessions alone has been a concern for the courts since 1789 with Lord Kenyon's judgement in Rv Wheeling. (26) In contrast, the Judges' Rules were habitually ignored by the police led The this to the very rarely consequence exclusion of confessional evidence. and in Confait (1974) justice the this the case poor police practice was miscarriages of of (27) which led to contemporary calls for a corroboration requirement for confessions. 'Me Fisher Report (1977) recommended a corroboration requirement for certain in juveniles. Poor the police practice categories of vulnerable suspects such as investigation of offences led to the series of serious miscarriages of justice revealed The Four. Many Guildford freeing these the the of miscarriages, such as of after Guildford Four, Birmingham Six, Stefan Kiszko, Judith Ward, Maguire cases, dated from the early to mid 1970s when the police generally were much less professional in The investigation than they police are paying now are now. the of criminal offences in terms of public repute for the fall-out from the 1970s era which was an behaviour integrity in in bad terms the police of and period conduct of exceptionally

335

from Ibe led investigations. 1989 these to calls of miscarriages criminal revelation from many quartersfor a corroborationrequirementfor confessions. Roger Leng has commented,(28) "Following the exposureof wrongful conviction basedon confessionevidencealone a substantialbody of opinion has favoured the introduction of a rule barring conviction on confessionevidenceunlesscorroborated." It would therefore be extremely naYveto argue that since confessionevidenceis so important to the conviction of the guilty that therefore more confessionsshould be admitted to trial than at presentby reversing the judicial trend towards the exclusion of confessionsupon proof of police breachesof PACE which are 'significant and long be for In dangerous the term this the courts to take substantial'. would a route becauseof the dangersof increasing the risk of wrongful convictions on unreliable police evidence. However, there is a hint in the Court of Appeal decision in Rv McGovern that perhapsthe requirementsof PACE are too stringent in their effects on the admissibility of confessions. Lord Justice Farquharson, after quashing the conviction commented, "Whether it is a satisfactory consequencethat a confession be to which was admitted a true account of the appellant's in killing be this terrible participation wicked and should because breaches Act the the excluded of of and perhaps the Code of Conduct is no doubt a matter for debate, but we is in law. " (29) that the are satisfied effect

Moreover judicial willingness to exclude confession evidence has the beneficial effect jury into in trust that evidence and therefore confessions are admitted of securing facilitating the conviction of the guilty. This n-dght also have a beneficial effect on jury trust in the veracity of other police evidence such as police eyewitness testimony. 'Me point is that public doubt and suspicion about the interrogation process and jury have in is likely trust to other police an effect on confessions so obtained drugs his found in illegal that the they on accused or evidence such as police evidence home. In the 1970s the problem of 'verbaUing' was a problem which had reached be if jury in disbelief It alleged oral admissions surprising would not public notice. lent credence to other defence claims that the police had for example, "planted drugs" implicating defendant. If the police were testimony the their eyewitness or made up jury fabricating increased drugs then scepticism about police evidence and planting d function have in 1980s 1970s in the may served a useft: protecting and early evidence

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the innocent. However, if police professionalism has greatly improved in the post PACE era and therefore police fabrication of evidence is now a marginal problem, then jury suspicion of police evidence could lead to unJustified acquittals of the guilty. Judicial willingness to exclude non authenticatedconfessionevidence could have an important effect in shoring up jury confidence in other police evidence. Reiner in his work on Chief Constables,reports the remarks of one of his sample of Chief Constablesthat becauseof PACE, "Policing by plan had to replace policing by hunch. A related benefit was that police evidence would be more trusted as it had been gathered within the constraints of a rational set " (30) procedures. of Deliberate breach of procedures by police which constitutes 'oppression' as in Matto v DPP has a tendency to undermine public respect for the police and also the criminal justice system. Although a reliable conviction was lost in Matto v DPP arguably crime control was in the long run served for the legitimacy of the system was upheld and public co-operation thereby not alienated -a crucial fact given the dependenceby the police in detecting crime on public co-operation. A discretionary approach using S.78 is best suited to this purpose of maintaining legitimacy and therefore public here in Automatic the support criminal process. are not only exclusionary rules inimical to legitimate crime control concerns but threatens public confidence in breach because individuals being too many police another way guilty of of acquitted decision Unfortunately, the the the seriousness of a rule whatever offence. of the Court of Appeal in Rv Nathaniel although decided using the discretionary power of S.78, comes close to illustrating how over ready exclusion of highly probative though improperly obtained evidence can produce results which might be offensive to the because dangerous In Nathaniel of police a very criminal was acquitted public. breach (not even in bad faith) of a provision of PACE which cannot be described as improperly Discretionary to that obtained evidence scheme. exclusion of central due flagrant breach important for be those of process police reserved cases of should faith here legitimacy in is The the to of the criminal concern uphold public norm.s. process; over ready exclusion of reliable evidence threatens public confidence, at a faith Public legitimacy in the the time of great public concern about crime, system. of in the legitimacy of the process is partly dependent on the ability of the process to Nathaniel is dangerous Rv (3 1) from an criminals. criminals especially protect them is decision it but in decision the the this a noteworthy whatever merits of regarcL odd have judicial how to the changed since police attitudes evidence overall of symbol introduction of PACE.

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In the face of increasing and increasingly organisedcrime the police have negotiated for themselvesa considerablearray of powers. What were even until fairly recently liberty have become invasions be of personal now consideredto routine unacceptable The here obvious examples and virtually unarguablepolice practices. are the power to detain for questioning,the permitted length of that detention which can amount to days rather than hours and the permissibility of entrapmentas a detection device and evidencegathering method in certain circumstances. Even in 1929 at the time of the Royal Commission on Police Powersneither police use of traps nor interrogation nor for detention lengthy before beyond fierce debate and police periods charge, was widespreadopposition.

Summary In the era of PACE detention for questioning and non oppressive entrapment are fight The be in to tools the great considered widely vital police against crime. increase in crime from the late 1950s but especially from the 1970s must have became interrogation in to more contributed an atmosphere which and entrapment However, both interrogation acceptable. custodial and covert operations are now subject to constraining principles which the police must pay attention to so as not to jeopardise the admissibility of any evidence so gathered. Custodial interrogation is for for legislative interrogations judicial the to guidelines covert scheme and subject a investigative importance the the to police operations as of an accurate record of loss in integrity is the of of near automatic confidence method symptomatic of a began loss in 1970s This the early and gathered of confidence police evidence. light in In declined in the the public confidence of subsequent years. momentum integrity of the police the transparency of police investigations becomes desirable. If the police are more professional now than they ever have been and it would therefore be reasonably safe to rely in most cases on police evidence even in the absence of independent records, then the police are paying for their past vices in having to has It investigations. for the conduct of criminal comply with constraining principles but before healthier in "The been than that state a police are now pointed out recently look worse" (32) than in the pre PACE era. The Police and Criminal Evidence Act in fostering a more professional attitude in the police may have prevented even further by in An Act in the police which was seen recent years. erosion of public confidence investigations its in the police service early years as a constraint on effective criminal in interests by furthered have the confidence up public police shoring may actually The Police Criminal in justice the and criminal system. police at a time of great crisis

338

Evidence Act, although a jolt to the police when introduced, has had an important dark in levels the the in police after yearsof of public confidence pay-off aiding rising 1989-1992when public confidence in the police fell dramatically as the police paid the price for poor ethical criminal investigationsin the 1970s.

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Footnotes to Chapter 10 Conclusion (1a)

A. Sandersand R. Young, "Criminal Justice " 1994at p.203.

(1b)

In "Policing As Social Discipline" 1998 by Satnam Choongh there is also a for it is interrogation 237: I important to that call suggest at p. an end police to abolish the right of the police to question suspects... such powers serve as device discipline through the enabling an which police particular segmentsof the population", and at p. 139, "The importancewhich the police attachto their interrogation least is by desire the to power of at police partly explicable individuals for " A control obnoxious an end to reliance and communities. can -evidence has been by The Honourable J. Bruce confession on made Robertson, Judge of the High Court of New Zealand. Judge Robertson ban proposesa on the reception of confessionevidencemade out of court and duty "Any in the to testify survey of a reliance on a new court on accused: injustices alleged to have occurred both here and overseasindicates that a personýsalleged out of court statementshave been of pivotal importancein the found be to obtaining of convictions which are subsequently unjustified. General exclusion would lessen the possibility of injustice arising. Such be if is but that the would averted material essential under present system for distortion in the removed. explanation was required court with potential When persons actually face their judges of fact to explain themselves the be lessened. inappropriately " chance of avoiding responsibility would Honourable J. Bruce Robertson,"Rights and Responsibilitiesin the Criminal Justice System", F. W. Guest Memorial Lecture, 1992, Vol. 17 Otago Law Review, p.501 at p.516.

(2)

Sir Rupert Cross quoted at p.207 of W. Twining "Rethffildng Evidence" 1990.

(3)

ibid at p.208. D. Rose, "In the Name of the Law: The CoRapse of Crinfinal Justice" 1996 at p.20.

ibid. (6)

A. Sanders,"Controlling the Discretion of the Individual Officer" in R. Reiner Effectiveness, Empowerment "Accountable Policing: Spencer, S. editors, and Equity" 106. 1993 p. at and As Dixon comments, "If interrogation were to be severely restricted or law for in in implications the and the change substantial criminal abandoned development of other possibly more reliable but much more intrusive investigative methods need to be squarely faced." "Law in Policing: Legal Regulation and Police Practices" 1997at p. 176.

(7)

Woolmington v D. P.P. (1935) AC 462.

(7b)

G. Gudjonsson "The Psychology of False Confessions" (1989) Vol. 57-58 Medico-Legal Journal, p.93 at p.98. S. Greer, "Supergrasses" 1994 at p.214.

(9)

Hall vRf 197111 All ER 322 at p.324. 340

J. Jackson, S. Doran "Diplock Courts: Trial Without Jury" 1995 at p.54. D. Rose, "In the Name of the Law: The Collapse of Criminal Justice" 1996 at p. 174. (12)

J. Morton, "Supergrassesand Infortners" 1995 at p. 322.

(13)

S.Doran, "The Symbolic Function of the Summing up in the Criminal Trial" Vol. 42,(Winter 1991) Northern Ireland Legal Quarterly, p.365 at p. 37 1.

(14)

J. Jackson, S.Doran, "Diplock Courts: Trial Without Jury" 1995 at p.45.

(15)

C. Walker, 1. Cram, "D. N. A. Profiling and Police Powers" [1990] Crim. L. R. p.479 at p. 480.

(16)

DPP v Boarchnan [1974] 2 W. L. R. 673.

(17)

RvP[1991]2AIIER859.

(18)

Rv Channing [1994] Crim. L. R. 924C. A. e.g.

(19)

Sir Frederick Lawton "Tarnished Police Evidence", the Law Society's Gazette, Vol. 88, Wednesday 8 May 1991 at p.2. Another distinguished ex judge, Lord Devlin makes a similar recommendation to Sir Frederick Lawton when Devlin for like in "Easing I Passing": " the to my should writes see reliance part ... be interrogation I to reduced almost vanishing point. should upon police for from by into is it to trial that that prepared pay much excluded as admitting supposedly unfair to the accused. Let the court of trial and not the police be be less but determined let is the the place at which guilt station court inhibited about what it listens to. " p.213. Easing the Passing: The Trial of Dr. Bodkin Adams, 1985.

(20)

See "Tbe Police, the Law and the People", A Haldane Society Publication, 2nd Edition, 1982, by Nick Blake.

(21)

Lord Devlin, "Report to the Secretary of State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal Cases" 1976 (The Devlin Report). There is now a considerable body of literature on the psychology of mistaken identifications. Two accessible accounts of the "The Identification Evidence issues J. Jackson, Insufficiency of are main Based on Personal Impression" [1986] Crim. L. R. p. 203 and G. Davies: "Mistaken Identification: Where Law meets Psychology head on" (1996) The Howard Journal. Vol. 35, p. 232. )

(22)

Rv Turnbull [19771 Q.B. 224 [197612 ABER 549.

(23)

G. Robertson, Treedorn, The Individual and the Law", 1993, p.376.

(24)

RvTumbull[197612AIIER549atp.

(25)

Rv Hickin and others [1996] Criminal Law Review 584 at p.585. Jackson had gloomily predicted back in the 1986 Criminal Law Review that "there is discretion be justices judges their that will any acting within and no guarantee have identification inclined the to procedures evidence where exclude more in in 21 have been 1. As been the they than past" at p. other complied with not improperly the evidence judicial sea obtained as confessions and such areas identification discretionary improperly the collected exclusion of change on has proved commentatorswrong. evidence 341

552.

(26)

Rv Wheeling (1789) 1 Leach C. C.

(27)

The Confait Caseis reportedas Rv Lattimore (1975) 62 Cr. App.Rep.53.

(28)

R Leng "A Recipe for Miscarriage: The Royal Commission and Informal Interviews" in "Criminal Justice in Crisis" 1994,editedby M. McConville and L. Bridges, at p. 181.

(29)

Rv McGovem (199 1) Cr. App. R. 228 at p.235.

(30)

R. Reiner, "Chief Constables" 1992 at p. 149.

(31)

For an argument that Rv Nathaniel was wrongly decided by the Court of Appeal see I. H. Dennis "Ibe Law of Evidence" at pp.246-247: "It is had in finding deliberately that, the the that police suggested absenceof any set out to manipulate the defendant and abusetheir powers under PACE, the trial judge was right to admit the evidenceand the Court of Appeal wrong to allow the appeal ... where the police have not acted in bad faith, evidence be defendant disadvantaged if has been the should excluded only significantly by the breach and the breach violated a fundamental norm of the criminal justice process. Only somebreacheswill have this quality".

(32)

D. Downes and R. Morgan "The Politics of Law and Order in Post-war Britain" in "'nie Oxford Book of Criminology" 1994, edited by M. Maguire, R. Morgan and R. Reiner, at p.220.

342

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355

Ibrahim vR [1914] A. C. 599. Ireland v U. K. (1978) 2 E.H. R. R. 25. Jones v Owen (1870) 34 J.P. 759. Kuruma (son of Kaniu) vR [1955] A. C. 197. Lawrie v Muir (1950) SLT 37. Lildi v Switzerland (1993) 25 E.H. R.R. 173. Mapp v Ohio (1961) 367 U. S. 656. Matto v D. P.P. (Crown Court at Wolverhampton) (1987) RTR. 337. McKinney and Judge vR (1991) 171 CLR 468. Miranda v Arizona (1966) 348 U. S. 436. Mohammed (Allie) v The State. Times Law Report, 10th December 1998. Morris v Beardmore [ 1981] A. C. 446 [198012 All ER 753. People v Cahan (1955) 282 p.2 905. Porter v Court [1963] Crim. L. R. 39. Ridgeway vR [1995] 129 A. L. R. 41. Schenk v Switzerland (1988) 13 E.H. R.R. 242. Sharpe v D. P.P. (1993) R.T. R. 392. Smith v Director of the Serious Fraud Office [1992] 3 All ER 456. Smith v United Kingdom (1997) E.H. R.L. R. 277. Sneddon v Stevenson [1967] 2 All ER 1277. Teixeira de Castro v Portugal [ 1998] Crim. L. R. 75 1. Thongjai v The Queen, The Times 5th August 1997. Treadaway v Chief Constable of West Midlands (1994), Times Law Report, 25 October 1994. U. S. v Calandra (1974) 414 U. S. 338. U. S. v Leon (1984) 468 U. S. 897. Wanjiko v Reginam [1954] 21 E. African C.A. 186. Weir v Jessop (No. 2) (1991) S.C.C.R. 636. Williams and another v D. P.P. [1993] 3 All ER 365. Wilson and Murray v H. M. Advocate (1987) S.C. C.R. 217. Woohnington v D. P.P. [1935] A. C. 462. Wong Kam Ming vR[ 1980] A. C. 247.

Rv Absolam (1988) 88 Cr. App. R. 332. R. v Adamthwaite (1994) 15 Cr. App. R. (s) 241. February. Law Report 19th Times The (1991) Ali Rv Rv Alladice (1988) 87 Cr. App. R. 380. Court. Crim. R. Crown L. 163. Norwich (1977) Allen Rv 356

Rv Ameer and Lucas (1977) C. C.C. Crim L. R. 104. Rv Apicella (1985) 82 Cr. App. R. 295. Rv Aramah (1982) 42 Cr. App. R. (s) 407. Rv Bailey [1993] 3 All ER 513. Rv Baldry (1852) 16 J.P. 276. Rv Barry (1991) 95 Cr. App. R. 384. Rv Beales (1991) Crim. L. R. 118. Rv Bilinski [ 1987] 1 W. L. R. 1047. Rv Birtles [ 1969] 1 W. L. R. 1047. Rv Brine (1992) Crim. L. R. 122. Rv Britzman, Rv Hall [1983] 2 All ER 369. Rv Bryce [1992] 4 All ER 567. Rv Burnett and Lee (1973) Crim. L. R. 748. Rv Callaghan (1979) 69 Cr. App. R. 88. Rv Campbell (1995) 1 Cr. App. R. 522. Rv Canale [1990] 2 All ER 187. Rv Chalkley [1998] 2 Cr. App. R. 79 CA. Rv Cbanning [1994] Crim. L. R. 924. Rv Chapman (1989) 1 Cr. App. R. (s) 222. Rv Cbristou and Wright [1992] 4 All ER 559. Rv Chung (1990) 92 Cr. App. R. 314. Rv Cooke [1995] Crim. L. R. 497. Rv Court (1962] Crim. L. R. 667. Rv Cox [ 1991] Crim. L. R. 276. Rv Crampton (1990) 92 Cr. App. R. 319. Rv Crowe and Myerscough (1917) The Justice of the Peace, December 8 1917, p.288. Rv Cunningham [1957] 2 Q.B. 396. Rv Davies [1979] Crim. L. R. 167. Rv Delaney (1988) 88 Cr. App. R. 318. Rv Drunford (1990) 91 Cr. App. R. 150. Rv Edwards (1991) 93 Cr. App. R. 48. Rv Edwards (1992) 13 Cr. App. R. (s) 662. Rv Effik, Rv Mitchell (1992) 95 Cr. App. R. 427. Rv Elliott [ 1977] Crim. L. R. 551. 30th June Report, Law 1994. Times Elson (1994) Rv R. 284. Cr. 92 App. (1991) Emmerson Rv Rv Everett [1988] Crim. L. R. 826.

357

"v

Fennelley [19891 Crim. L. R. 142.

"v

Fogah [1989] Crim. L. R. 141.

Foulder, Foulkes and Johns [ 1973] Crim. L. R. 45. Rv Fulling [1987] 2 All ER 65.

"v

Rv Gavin and others (1885) 15 Cox C.C. 656. Rv Gill and Ranuana,[1989] Crim. L. R. 358. Rv Gillard, Rv Barrett (1991) 92 Cr. App. R. 6 1. Rv Glaves [ 1993] Crim. L. R. 685. Rv Goldenberg (1989) 86 Cr. App. R. 285. Rv Governor of Pentonville Prison ex parte Chinoy [ 199211 All ER 317. RvH [1987] Crim. L. R. 47 (Winchester Crown Court) Rv Hall (1994) unreported Leeds Crown Court (Mr Justice Waterhouse) Rv Harvey [19881 Crim. L. R. 1241. Rv Harwood [19891 Crim. L. R. 285. Rv Heaton [19931 Crim. L. R. 593. Rv Heron (1993) Unreported Leeds Crown Court (Mitchell J.) Rv Hickin and others [ 1996] Crim. L. R. 584. Rv Horseferry Road Magistrates Court ex parte Bennett (1993) 2 W. L. R. 90. Rv Hudson (1980) 72 Cr. App. R. 163. Rv Hmt [1992] Crim. L. R. 582. RvH[

199512 All ER 865.

Rv Isequilla [1975] 1 W. L. R. 716. Rv Jelen and Katz (1989) 90 Cr. App. R. 456. Rv Kearley [ 199212 All ER 345. Rv Keenan [198913 W. L. R. 1193, C.A. Rv Kersey (1908) 1 Cr. App. R. 260. Rv Khan 199414 All ER 426. Rv Khan 199612 All ER 289. Rv Khan [1997] Crim. L. R. 508. Rv Kilner [1976] Crim. L. R. 740. Rv Knight and Thayre (1905) 20 Cox C.C. 711. Rv Lambe (1791) 2 Leach C. C. 552. Rv Latif and Shahzad (1996) The Times 23rd January 1996. Rv Leatham (1861) 8 Cox C. C. 498. Rv Lemsatef [1977] 2 All ER 835. L. R. 817. Crim. ] [ Tsui 1995 Hung Lin, Rv and L. R. 602. Crim. [ 19921 Shaw Mackey Rv and R. 98. Cr. App. 96 (1993) Mackenzie Rv

358

Rv Mackintosh (1982) 76 Cr. App. R. 98. Rv Male and Cooper (1893) 17 Cox C.C. 689. Rv Mallinson ( 19771Crim. L. R. 161. Rv Marsh [1985] Crim. L. R. 47. Rv Masih [1986] Crim. L. R. 395. Rv Mason [1987] 3 All ER 481. Rv May (1952) 36 Cr. App. R. 91 Rv Metropolitan Police Commissioner ER [1968] 1 All 763. Blackbum ex parte Rv Metropolitan Police Conunissioner ex.parte Blackburn and another (No. 3) [19731 1 All ER 324. Rv McCann (1971) 56 Cr. App. R. 359. Rv McGovern (1991) 92 Cr. App. R. 228. Rv McGregor [1975] Crim. L. R. 514. Rv McKinney and Judge (1991) 171 CLR 468. Rv McNally [ 195411 W. L. R. 933. Rv Mealey (1974) 60 Cr. App. R. 59. Rv Mfller f 198612 All ER 119. Rv Mills and Lemon (1947) KB 297. Rv Moss (1990) 91 Cr. App. R. 37. Rv Nagah (1990) 92 Cr. App. R. 344. Rv Nathaniel (1995) 159 J.P. 419. Rv Nelson and Rose (1998) 2 Cr. App. R. 399. Rv Northam (1967) 52 Cr. App. R. 97. Rv O'Loughlin [ 1987] Crim. L. R. 672. Rv Paris, Abduflahi and Miller (1993) 97 Cr. App. R. 99. Rv Pattinson (1973) Cr. App. R. 417. Rv Payne [1963] 1 All ER 848. Rv Payne (1994) 15 Cr. App. R. 395. Rv Perrin (1991) 13 Cr. App. R. (s) 578. Rv Powell [19801 Crim. L. R. 39. Rv Powell [198611 All ER 193. Rv Prager [ 197211 All ER 1114. Rv Priestley (1965) 51 Cr. App. R. 1. Rv Quinn [ 19901Crim. L. R. 581. Rv Quinn (1995] Crim. L. R. 56. Rv Ramen (1988) 10 Cr. App. R. (s) 334. Rv Rennie [198211 All ER 385. Rv Rimmer (1972) 1 W. L. R. 268.

359

Rv Roberts [195312 All ER 340. Rv Samuel [1988] 2 All ER 135. Rv Sang (1980) A. C. 402 [1979] 2 All ER 1222 H. L. Rv Sang [1979] 2 All ER 63 C.A. Rv Scott [1991] Crim. L. R. 56. Rv Silcott, Rv Braithwaite, Rv Raghip, (1991) The Times Law Report, Dec 9th 1991. Rv Smith [1959] 2 All ER 193. Rv Smurthwaite [1994] 1 All ER 898. Rv Stagg (1994) unreported Central Criminal Court 19th September 1994 (Ognall J.) Rv Stephen King f 1980] Crim. L. R. 581. Rv Stewart (1972) 56 Cr. App. R. 272. Rv Stewart [ 19951Crim. L. R. 560. Rv Sullivan (1887) 16 Cox C. C. 347. Rv Thompson (1893) 2 Q.B. 12. Rv Titley (1880) Central Criminal Court Dec. 16th (Stephen J. ). Cox's Criminal Cases, Vol XIV 1877-82 at p. 502. Rv Trickett [ 1981] Crim. L. R. 33 1. Rv Turnbull (1977) Q.B. 224 (197612 All ER 549. Rv Turner (1975) 61 Cr. App. R. 67. Rv Turner [ 1975]I All ER 70. Rv Underhill (1979) 1 Cr. App. R. (s) 270. Rv Voisin (1919) 1 K. B. 23 1. Rv Walsh (1980) 91 Cr. App. R. 161. Rv Ward (1993) 98 Cr. App. R. 337. Rv Warickshall (1783) 1 Leach 263. Rv Weerdesteyn [1995] Crim. L. R. 239 [199511 Cr. App. R. 405. Rv Westlake [1979] Crim. L. R. 652. Rv Wheeling (1789) 1 Leach C.C. 31 1n. Rv Williams [1989] Crim. L. R. 66. Rv Williams, Rv Smith (1995) 1 Cr. App. R. 74. Rv Wood [19941 Crim. L. R. 222.

1TT\ IL 360

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