Interrogations-and-Confessions-Handbook

The English Law on Confessions 253
that is crucial rather than any arguments about police impropriety, although
impropriety can also be relevant to the legal arguments (Feldman, 1990).
The final hurdle, if the other two have failed, lies with Section 82(3). The full
discretionary powers of the judge to exclude evidence under this section are
not made clear in the Act, but they cover the exclusion of evidence when the
prejudicial effect outweighs its probative value. According to Birch (1989),
In the context of confessions this would mean evidence the reliability of which is
more apparent than real, for example the confession of an unusually suggestible
defendant (p. 97).
The two most important sections with regard to confession evidence are undoubtedly
Sections 76 and 78 (Birch, 1989; Cho, 1999). There are a number
of differences between these two sections, one of which, as already stated, relates
to where the onus of the burden of proof lies. Perhaps the most fundamental
difference, however, relates to discretionary powers. That is, Section 76
involves ‘proof of facts’, whereas Section 78 involves ‘the exercise of judgment
by the court’ (Birch, 1989, p. 96). In other words, these sections set out the circumstances
under which a confession may not be used against the defendant
at trial; the court must exclude the confession if it finds it was obtained by
‘oppression’ or under circumstances likely to render it ‘unreliable’ (Section 76).
In contrast, the court may exclude the confession if its admission is likely to
have an adverse effect on the fairness of the proceedings (Section 78).
Another difference is the emphasis in Section 76 on police behaviour and the
reluctance of judges to include under this provision unreliability due solely to
internal factors (e.g. drug withdrawal, disturbed mental state). There is generally
the need to establish some kind of police impropriety or misconduct with
regard to Section 76; that is, it would be unlikely to succeed in cases of ordinary
and proper police questioning. This is particularly important in relation
to Section 76(2)(a), which necessarily involves impropriety, whereas a confession
may be ruled inadmissible under Section 76(2)(b) without any impropriety
(Richardson, 2001). With regard to Section 76,
Hostile and aggressive questioning which puts pressure on a defendant will not
necessarily render the confession unreliable. The length of the interviews and
the nature of the questioning are the important considerations: R. v. L. [1994]
Crim.L.R. 839, CA (Richardson, 2001, p. 1483).
Emphasis on the characteristics of the individual when interpreting psychological
coercion is recognized by some judges. For example, in the judgment of
R. v. Priestley ([1966], 50, Cr.App.R. 183) it was stated:
What may be oppressive as regards a child, an invalid or an old man or somebody
inexperienced in the ways of the world may turn out not to be oppressive when
one finds that the accused is of tough character and an experienced man of the
world (cited by Bevan & Lidstone, 1985, p. 299).
The case of Stephen Miller, one of the ‘Cardiff Three’ (R. v. Paris, Abdullahi &
Miller [1993], 97 Cr.App.R, 99), provides an important judgment in relation