The impact of HRA 1998 on burden of proof and confession

Hence, the outcome of Salabiaku is that provisions that appear to impose obligation on the accused to adduce evidence to avoid conviction will not necessarily violate the HRA. Rather, the current dilemma for English courts is whether, and in what circumstances, it is justifiable and proportionate to impose not only an evidential but also a legal or persuasive burden on the accused.

Apprehension arose in UK as early as 1999 in R v DPP, exp. Kebilene whereby, the House of Lords did not accept the Divisional Court's observation that reverse-onus provisions would inevitably lead to a finding of incompatibility with the Convention. Here, Lord Hobhouse accepted that in appropriate circumstances, a reverse-onus provision could be justified although it appeared 'on its face' to be violating the Convention. Lord Hope emphasised the importance of achieving an appropriate balance between competing interests and observed that Article 6(2) “is not regarded as imposing an absolute prohibition on reverse-onus clauses…the question will be whether the presumption is within reasonable limits.” 

However, in R v Lambert, majority of the House of Lords considered that placing the persuasive burden on the accused was disproportionate and unjustified and would violate with Article 6(2). Here, the Lords continued to consider the interpretation of reverse-onus clauses. Lord Steyn alleged that the principle of proportionality required the court to assess if there was a “pressing necessity to impose a legal rather than evidential burden on the accused”. Additionally, he considered “that the transfer of the legal burden in Section 28 does not satisfy the criterion of proportionality…the Act is a disproportionate reaction to perceived difficulties facing the prosecution in drugs cases.” 

Lord Clyde, also, was concerned that a consequence of the reverse-onus was that it is possible to convict the defendant “where the jury believed he might well be innocent but have not been persuaded that he probably did not know the nature of what he possessed.” However, Lord Hutton considered that the social threat posed by drugs was sufficiently grave to justify the imposition of a persuasive burden.

Applying Lambert, the Court of Appeal in R v Carass considered that the proper approach to the problem of reverse-onus provisions is that “it must be justified and in particular it must be demonstrated why a legal or persuasive burden rather than an evidential burden is necessary. “

The majority in Lambert were clearly willing to use the HRA to endorse, as Lord Clyde deemed, a 'reconsideration' of the trend towards the imposition of legal burdens on the accused, but they were unwilling to lay down a universal rule that burdens on the defence should be evidential only.

Hence, the difficulties and inconsistencies inherent in an approach involving case law and different opinions of judges on whether Section 3 should be used to 'read down' provisions requiring defendants to 'prove' an issue are obvious. Nevertheless, the acknowledgement that it is possible in the post-HRA era for this to be done represents a major advance in the law and the eminence of the presumption of innocence seems to be escalating.

The statutory provision for confession is embodied in Section 76 of the Police and Criminal Evidence Act (PACE) 1984. It defines a confession to include ‘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’. A confession may be relied on as sufficient proof of guilt despite the absence of any other evidence as seen in R v Skyes.

In England, interrogation is the primary investigative device engaged by police, and confessions have been the "central plank" of the majority of cases as it has been reviewed that the overall confession rate among suspects in UK close to 60% over past 25 years.        

It is undeniable that confession may lead to miscarriage of justice and possible abuse by authority as seen in R v McIlkenny & Ors and hence, strict requirements in order to admit confessions are inherently needed. This is further fortified in UK as it might contravene the ECHR.

The exclusionary rule achieved its first clear and authoritative formulation in R v Warickshall and was later acknowledged in the judgment of Baron Parke in R v Baldry.

The exclusionary rule is codified in PACE, whereby confessions would be ‘excluded under Section 78 only if its reliability has been compromised by the manner in which it was obtained’. The courts' maintenance of this approach in the face of the HRA has been assisted in no small measure by the decision of the ECHR in Khan v UK whereby the Commission concluded that the use of secretly taped confession did not conflict with the requirements of fairness guaranteed by Article 6(1) although it infringed Article 8.

                If there is a dispute to its admissibility and where the admissibility of confession evidence is challenged under Section 76 PACE, the prosecutor must prove beyond reasonable doubt that the confession was voluntary, as held in R v Thompson, and must not been obtained by any fear of prejudice or hope of advantage exercised or held by a person in authority or by oppression which were likely to have made it unreliable.  The challenge to the admissibility of a confession is known as voire dire and this applies to both Crown Court and Magistrates Courts because Section 76(2) PACE.

                    Even if satisfied beyond reasonable doubt, judges could still exclude it in exercising their discretion, on the grounds that it was obtained by improper or unfair means, its prejudicial effect outweighed its probative value, and it was obtained in breach of the Judges’ Rules. Hence, statements made by suspects, which do not contain admissions are not liable to exclusion under Section 76 PACE as stated in Regina v Sat-Bhambra.

This situation can arise in respect of an unlawful arrest or detention, ill-treatment of the defendant, failure to administer the caution, denial of access to a solicitor, no proper record of interview, pressure or deception practised on the defendant. Any of these circumstances are also likely to infringe the ECHR which regards the need to ensure that the confession is strictly voluntary.

The term "oppression" is defined to include "torture, inhuman or degrading treatment, and the use or threat of violence" and this definition reflects the wording of Article 3 of ECHR. The meaning of “oppression” was also considered by the Court of Appeal in the case of Regina v Fulling, whereby the court held that "oppression" for the purposes of Section 76 PACE was to be given its ordinary dictionary meaning and was likely to involve some impropriety on the part of the interrogator.

Confessions are deemed unreliable if they fall within the wide ranging scope of Section 76(2)(b) PACE, as set out by the Court of Appeal in the case of Regina v Fulling. These include confessions obtained as the result of an inducement, hostile and aggressive questioning, etc….

In A v Secretary of State, Article 5 enshrining the right against torture and degrading treatment was in issue. The courts were faced with the admissibility of inappropriately obtained confessions from other states. The Court of Appeal held that it was because it did not amount to an abuse of process as it was obtained inappropriately by agents of other states. The House of Lords adamantly overruled this.

Lord Bingham stressed that the law regards '…torture and its fruits with abhorrence…', and that such evidence was “unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice.” Lord Hoffman declared that "…It corrupts and degrades the state which uses it and the legal system which accepts it” and that not admitting it concerned “uphold the integrity of the administration of justice” shunning it as dishonourable. Lord Bingham went as far as to say that “…the honour of our courts and our country…" were at stake. It is evident that the Law Lords have high regard to Article 5 and greatly disagree with the admissibility of such obtained evidence.

As we become a more right conscious society, the law is bound to develop to ensure those rights. The law of evidence affects many of those rights, and its impact is irrefutable.

(1996 words)

BIBLIOGRAPHY

Journals and Articles

A. Ashworth and M. Blake, 'The Presumption of Innocence in English Criminal Law' [1996] Crim LR 306

G. H. Gudjonsson, ‘The Psychology of Interrogations, Confessions and Testimony’ (1992)

Susan Nash & Andrew L.-T. Choo, [2003] ‘Evidence law in England and Wales: The impact of the Human Rights Act 1998’. - EvPro 7 1 (1) (2)

Andrew Ashworth, [2006] ‘Four Threats To The Presumption Of Innocence’ - EvPro 10 4 (241)

Solomon E. Salako ‘Strict Criminal Liability: A Violation of the Convention?’ [2006] - JoCL 70 (531)

Sean Doran, John Jackson, Katie Quinn, ‘Evidentiary Principles and Human Rights’ [2001] Evidence All England Annual Review

Online Research

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Lexis Nexis

Westlaw

Books

Adrian keane, The modern law of evidence 6th edition (2006)

Colin Tapper, Cross & Tapper on Evidence 11th edition (2007)

Stephanos Stavros, The Guarantees for Accused Persons Under Article 6 of the European Convention on Human Rights, Volume 24 (1993)

Steven Greer, The European Convention on Human Rights (2006)

Raymond Emson, Evidence 3rd edition (2006)

Mark W. Janis, European Human Rights Law Text and Materials 3rd edition (2008)

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