Confessions

• A defendant may be convicted on the evidence of a confession alone, although in practice this is not common.

• The definition of a confession is contained in s82(1) Police and Criminal Evidence Act 1984 (PACE).

• A confession proffered by the prosecution may be excluded by rule under s76(2)(a) and (b) PACE and one proffered by a co-defendant under s76A(2)(a) and (b).

• A confession that has been proffered by the prosecution may be excluded by operation of statutory discretion under s78 PACE.

• Section 82(3) PACE preserves the common law discretion to exclude evidence.

• PACE Codes of Practice C, E, and F govern the procedure for police interrogation of suspects.

Pre-trial silence

• A suspect’s failure to give an explanation when questioned by a constable under caution may allow the jury at trial to draw an inference of guilt under ss34, 36, and 37 Criminal Justice and Public Order Act 1994 (CJPOA).

• Sections 34, 36, and 37 CJPOA only apply if the suspect is questioned at an authorised place of detention and has been allowed an opportunity to consult a solicitor prior to being questioned, charged, or officially informed he might be prosecuted.

• The fact that the suspect relied on legal advice to remain silent does not of itself prevent adverse inferences being drawn at trial.

• Article 6 European Convention on Human Rights (ECHR) does not specifically include the right to silence or the privilege against self-incrimination. These have been recognised as international standards which lay at the heart of the notion of fair procedures but not as absolutes.

• Inferences of guilt permissible under ss34, 36, and 37 are not sufficient without additional evidence to establish a case to answer or a finding of guilt.

• If the suspect and interrogator are on ‘even terms’, silence on the part of the former may amount to an admissible confession under the common law.