What are the general rules about confessions?
Statements against interest like confessions are generally admissible as an exception to the hearsay rule.
This is because they are assumed to be especially reliable, because persons are unlikely to make inaccurate statements to their own prejudice.
However, they will be inadmissible if they have been unfairly obtained.
What are the ways in which a confession is inadmissible?
- A breach of the right of access to legal advice (Cadder)
- A breach of the common law test of ‘fairness’ (Brown)
What is the right to free legal advice?
- The fundamental right that a suspect is entitled to speak to a solicitor privately before police questioning.
- A confession obtained in breach of this right is inadmissible.
- Police must contact a solicitor on the suspect’s behalf if requested.
- Derivative evidence obtained may still be admissible if it was sufficiently remote from the breach.
Cadder v HMA 2010
A person who has been detained by the police has:
a) the right to have access to a lawyer prior to being interviewed,
b) unless in the particular case’s circumstances there are compelling reasons to restrict that right.
Resulted in widespread inadmissibility of previously obtained interview evidence, prompting major emergency legislation and procedural changes followed.
Can the right to legal advice be waived by the suspect?
McGowan v B says the right may be waived only if the waiver is:
- free
- voluntary
- informed
When does the right to legal advice attach?
At the first interview when the accused is in custody.
E.g. McLean v HM Advocate, guy offered information when police were just searching his house, not in custody so it doesn’t matter that he didn’t have legal advice as he wasn’t under arrest.
What is the common law test of fairness?
A confession will be inadmissible if ‘unfairly’ obtained.
Brown v HM Advocate 1966 - “has what has taken place been fair or not?”
What makes a confession unfairly obtained?
Not an exhaustive list but common considerations include:
- absence of caution
- manner of questioning
- threats or inducement
- suspect’s condition (physical, mental, age etc.)
Is fairness the same as good faith?
No fairness is objective.
Evidence will be inadmissible regardless of whether the police acted in good faith or not. (Jack v HMA)
What is a caution? What are the impacts of not having one?
A warning that the suspect:
- is not obliged to say anything
- anything said may be recorded and used as evidence
Failure to give a required caution normally renders a confession unfairly obtained. However, general fairness test will be observed so it may still be admissible (Wilson v Heywood).
What about manner of questioning?
A confession is improperly obtained if there was:
”improper forms of bullying or pressure designed to break the will of the suspect or to force from him a confession against his will” from Lord Advocate’s Reference (No 1 of 1983)
What about threats or inducements?
Confessions obtained through threat or inducements are unfair.
Harley v HM Advocate 1996 - a confession obtained through threat to expose an affair rendered it inadmissible.
What about overheard or intercepted statements?
A statement overheard is generally admissible.
Jamieson v Annan 1988 (conversation between two suspects detained in separate cells)
But it might be unfairly obtained if the police had engineered the situation: HM Advocate v Higgins 2006
What about legally compelled statements?
Certain statutes require people to give evidence of potentially incriminating information.
Example: Road Traffic Act 1988 – duty to identify driver involved in an incident
Who determines admissibility?
Thompson v Crowe 2000 - the judge will determine admissibility, not the jury which used to.
May involve a ‘trial within a trial’
Admissibility must be proven by the prosecution on the balance of probabilities.
