Interrogations-and-Confessions-Handbook

256 A Psychology of Interrogations and Confessions
non-confession cases, where the reliability of the evidence itself is not in dispute
(e.g. where reliable evidence was obtained by improper or illegal means).
As far as police trickery and deceit is concerned,
The general approach of the courts to evidence obtained by trickery is to say that
deceit which simply provides defendants with an opportunity to confess to the
offence, as opposed to trickery that positively induces a confession, will not result
in a confession being excluded (Richardson, 2001, p. 1535).
The importance of Section 78 in recognizing the legal significance of internal
psychological factors, in the absence of police impropriety, is provided in the
case of Brine ([1992], Crim.L.R. 122). During interrogation a defendant had
confessed to indecently assaulting an eight-year-old girl. At trial, during a voire
dire, a clinical psychologist testified that the defendant had when he made the
admissions
. . . been suffering from a relatively mild form of paranoid psychosis, the effect of
which was that, under stress of questioning, he would have felt very threatened,
been likely to tell lies and, make untrue admissions (p. 123).
The psychologist testified during the voire dire that, as a result of the defendant’s
mental state during police questioning, his confession was unreliable.
The Crown called no evidence in rebuttal. The judge stated that he had found
the psychological evidence impressive and had accepted it, but nevertheless
ruled the confession statement admissible, because he did not think Section 78
applied to the case. The case was appealed, and the Court of Appeal decided
that the trial judge, having accepted the psychological evidence, had failed to
exercise his statutory discretion to rule the defendant’s confession inadmissible.
He had misconstrued Section 78 by assuming that in addition to internal
factors some misconduct on part of the police was required. The conviction was
accordingly quashed on appeal.
McEwan (1991) argues that PACE is simply not designed to deal with the
problem of self-induced unreliability. She recommends greater judicial acceptance
of psychological evidence (e.g. personality characteristics that make people
susceptible to unreliable testimony without mental illness or learning disability).
As will be evident later in this chapter and in Part III of this book,
the Appeal Courts in England and Northern Ireland are becoming increasingly
receptive to psychological evidence that does not necessarily involve mental
disorder.
According to Archbold,
The Truthfulness of the Confession
The truth of the confession is immaterial. If the judge concludes that what was
said and done was likely to render any resulting confession unreliable and the
prosecution fail to prove that the confession was not obtained in consequence
thereof, he has no discretion: R. v. Kenny [1994] Crim.LR. 284, CA. See also R. v.
Paris, 97 Cr.App.R. 99 at 103, CA (Richardson, 2001, p. 1484).