Interrogations-and-Confessions-Handbook

The English Law on Confessions 251
Definition of a Confession in PACE
PACE attempts to provide a working definition of the word ‘confession’. It is
construed in Section 82 (1) as including
. . . any statement wholly or partly adverse to the person who made it, whether
made to a person in authority or not and whether made in words or otherwise
(Home Office, 1985a, p. 75).
The terminology used in the Act to define a confession is very broad and implies
that self-incriminating admissions, which fall short of a full confession, are
also classified under the heading of a confession. Since under certain circumstances
exculpatory statements, such as denials, can be construed as adverse
and may even be used against defendants as evidence of deliberate lying and
guilt (Gudjonsson, 1995c), this would also appear to fall under the above definition
of a ‘confession’. However, incriminating denials cannot meaningfully be
described as a ‘confession’ and ought to be dealt with under Section 78 of PACE
(Gudjonsson, 1993a). This is recognized in the leading legal authority Archbold
(Richardson, 2001):
The approach in R. v. Sat-Bhambra, ante, that exculpatory statements are not to be
treated as confessions for the purposes of Section 76 simply because they are used
against the defendant at trial as false or inconsistent statements, was confirmed
in R. v. Park, 99 Cr.App.R. 270, CA. Aliter, in the case of remarks which, whilst
not amounting to a confession of guilt, would only be made by a guilty person: see
R. v. Cox, 96 Cr.App.R. 464 at 474, CA (p. 1482).
However, it is suggested in Archbold that
The definition in section 82(1) is not exhaustive: the expression ‘made in words
or otherwise’ may include, it is submitted, a defendant’s failure to respond to
questioning from which an adverse inference may be drawn under sections 34,
36 or 37 of the Criminal Justice and Public Order Act 1994 (Richardson, 2001,
p. 1482).
It seems extraordinary to be suggesting that a defendant, who is exercising his
right of silence by declining to answer questions, may be construed as making
an expression that falls under the heading of a ‘confession’. This can be
attributed to the vagueness and broad nature of the definition in Section 82(1)
and illustrates how important interpretations are in relation to legal concepts.
Challenges to Admissibility
As far as the admissibility of confession evidence is concerned, this may be
challenged in one or more of four ways (Richardson, 2001). The first two tests
relate to Section 76(2)(a) and (2)(b) of PACE and other tests invoke Sections
78(1) and 82(3). Section 76 states:
If, in any proceedings where the prosecution proposes to give in evidence a confession
made by an accused person, it is represented to the court that the confession
was or may have been obtained—