Confessions and Hearsay in Criminal Proceedings

Introduction

The law governing confessions and hearsay in criminal proceedings is central to the fairness of criminal trials. Confessions are a common form of prosecution evidence but raise concerns about reliability and the risk of oppression. Hearsay evidence — out-of-court statements adduced to prove the truth of their contents — is subject to complex rules governing admissibility. The relevant statutory provisions are found in the Police and Criminal Evidence Act 1984 (PACE) and the Criminal Justice Act 2003 (CJA 2003).

Confessions under PACE

A confession is defined by section 82(1) of PACE as “any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise.” Confessions are admissible in criminal proceedings as an exception to the hearsay rule, but their admissibility is subject to the provisions of sections 76 to 78 of PACE.

Section 76(1) provides that a confession is admissible against its maker in criminal proceedings. However, section 76(2) requires the court to exclude a confession if the prosecution cannot prove beyond reasonable doubt that the confession was not obtained by oppression or as a result of anything said or done that was likely to render the confession unreliable.

Oppression includes torture, inhuman or degrading treatment, and the use or threat of violence, as defined by section 76(8). In R v Fulling (1987), the Court of Appeal held that oppression means conduct that is “burdensome, harsh, or wrongful” and involves some element of impropriety by those questioning the suspect.

The reliability test under section 76(2)(b) is broader than oppression. The court must consider whether anything said or done by any person was likely to render the confession unreliable, regardless of whether there was impropriety. In R v Goldenberg (1988), the court held that the test applies only to things said or done by persons other than the defendant, not to the defendant’s own mental state.

Excluding Confessions under Section 78

Section 78 of PACE gives the court discretion to exclude prosecution evidence, including confessions, where its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. Section 78 is frequently used to exclude confessions obtained in breach of the PACE Codes of Practice, including the failure to caution a suspect, the denial of access to legal advice, and the failure to record interviews.

In R v Samuel (1988), the Court of Appeal held that a confession obtained after the defendant was denied access to a solicitor in breach of section 58 of PACE should have been excluded under section 78. The court emphasised that the right of access to legal advice is a fundamental right and that breaches are likely to render confessions inadmissible.

The Hearsay Rule

The hearsay rule is a fundamental principle of the law of evidence in criminal proceedings. Hearsay is an out-of-court statement adduced as evidence of the truth of the matters asserted. The rule excludes hearsay because the opposing party cannot cross-examine the maker of the statement, and the court cannot assess their demeanour and credibility.

The Criminal Justice Act 2003, sections 114 to 136, reformed the law of hearsay in criminal proceedings, replacing the complex and fragmented common law with a statutory framework. Section 114(1) provides that hearsay is admissible only if one of the gateways applies: by statute (including the CJA 2003 itself); by a common law rule preserved by the Act; with the agreement of all parties; or where the court is satisfied that it is in the interests of justice to admit it.

Hearsay Gateways

The principal gateways for the admission of hearsay in criminal proceedings are set out in section 116 of the CJA 2003. A hearsay statement is admissible where the maker of the statement is: dead; unfit to attend court due to physical or mental condition; outside the United Kingdom and it is not reasonably practicable to secure their attendance; cannot be found despite reasonably practicable steps; or in fear of giving evidence and the court gives leave.

Section 117 of the CJA 2003 provides for the admission of hearsay in business documents, including records created by a person in the course of a trade, business, profession, or other occupation. The document must have been created by a person with personal knowledge of the matters dealt with, and the information must have been supplied by a person who had personal knowledge.

Section 118 preserves certain common law exceptions to the hearsay rule, including: public information (such as published works, public documents, and records); reputation and family tradition; and the common law exception for admissions (which is now governed by PACE s 76 for confessions).

The Interests of Justice Gateway

Section 114(1)(d) of the CJA 2003 gives the court a residual discretion to admit hearsay where it is in the interests of justice to do so. The court must have regard to the factors listed in section 114(2), including the probative value of the evidence, the importance of the evidence to the case, the circumstances in which the statement was made, the reliability of the maker, and the difficulty of challenging the hearsay statement.

The interests of justice gateway has been applied in a wide range of cases, including where the maker of the statement has died or is too ill to attend, where the maker cannot be found, and where the maker is unwilling to give evidence.

The Right to Challenge Hearsay

Section 124 of the CJA 2003 provides that where a hearsay statement is admitted, any party may adduce evidence that would have been admissible to attack the credibility of the maker of the statement, including evidence of previous inconsistent statements, bad character, and bias. This provision mitigates the disadvantage suffered by the party against whom hearsay is adduced.

Conclusion

The law of confessions and hearsay in criminal proceedings balances the need for probative evidence against the requirements of fairness and reliability. PACE sections 76 to 78 provide robust safeguards against unreliable confessions, while the CJA 2003 provides a structured framework for the admission of hearsay, preserving the defendant’s right to challenge the credibility of the maker of the statement.