JB392/21 R v Matthew and James Wragg : Criminal Law

To: Janet Briggs From: Date: 13th January 2022 Re: JB392/21 R v Matthew and James Wragg 1. Nature of the evidence and rules governing its admissibility The Black’s Law Dictionary defines confessions as a criminal suspect’s oral or written acknowledgment of guilt often including details about the crime 1. John Wigmore (1970) also defines the term confession to mean, “An acknowledgment in express words by the accused in a criminal case of the truth of the main fact charged or some essential part of it.2” The law governing confessions is provided by the Police and Criminal Evidence Act (1984). The Act defines confessions 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.”

The Police and Criminal Evidence Act (PACE) 1984 provides for the admissibility of confessions made by an accused person at any time before or during criminal proceedings. Section 76 (1) of PACE provides that confessions are generally admissible in UK criminal courts. The specific wording of the section provides: “In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.”

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Garner, Bryan A. "Black's law dictionary." (2004): 1-1810.

Wigmore, John Henry. "Evidence in trials at common law.(Chadbourn Revision)." (1970).

However, from the reading of the section it is evident that courts are clothed with the discretion to exclude confession evidence. In cases where the defence represents that the confession that the prosecution intends to produce was obtained irregularly and opposes the production of such evidence then the court is obliged to only allow the confession if the prosecution can prove beyond reasonable doubt that the confession was properly obtained as per section 76 (2) of PACE. Further, Section 76(3) of PACE provides that the court may also on its own motion require the prosecution to prove that the confession tendered in evidence was not obtained in an improper manner.

From the foregoing analysis it is clear that for confessions to be admissible they must pass the test imposed by section 76(2) of PACE. The test contemplated by the Act is whether the prosecution can prove beyond reasonable doubt that the confession was not obtained by oppression of the person who made it or as a consequence of anything said or done which, in the circumstances in play at the time, likely to render unreliable any confession made at that time.

Before the court admits the confession to evidence it must be satisfied that the confession satisfies the twin tests established hereinabove. First the court must be satisfied that the confession was obtained in circumstances where the accused person was free from oppression. Section 76(8) defines the term oppression to include “torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture).” Where the court perceives that the accused person was subjected to oppressive treatment it will exclude the confession of the accused from evidence.

The second limb of the admissibility test is whether the confession obtained is reliable. To this end the Judge will consider the circumstance that exist at the time the confession was deemed to have been obtained. The issue of unreliability will be looked at in the light of whether the actions done at the time of confession were likely to induce the accused person to confess to a crime they did not commit. In Proulx v Governor of HM Prison Brixon 3 Mance LJ opined that it is necessary for a judge to consider, with the benefit of hindsight and with the aid of all the information available at trial, whether whatever was said or done was likely to have rendered the 3

[2000] EWHC Admin 381

confession unreliable. While conducting such enquiries it is important to remember that the burden of proof has shifted to the prosecution and the standard required of them is that of beyond reasonable doubt.

Section 78 of PACE seems to preserve the common law power of the courts to exclude evidence if it appears that that the circumstances in which the evidence was obtained would cause manifest unfairness on the proceedings that the court ought not to admit it. The section is broad enough that it allows judges to exclude confessions which appear to occasion injustice on the accused in the criminal proceedings. The court in R v Hughes4 was of the opinion that judges must seek to strike a balance between fairness for the accused person as well as fairness for the prosecution. To this end confessions obtained through trickery will also be excluded for failing the test of fairness as per the decision in R v Mason.5 It follows that police officers and investigators must adhere to the provisions of the Service Police Codes of Practice to minimize the risk of their actions being deemed unfair.

From the foregoing analysis it is clear that for confessions to be admitted as evidence the prosecution must satisfy the courts that the manner in which the evidence was obtained was not oppressive to the accused, reliable and fair to the accused person.

2. Whether the evidence is admissible In the case of Mathew Wragg the question is whether the confession recorded by the investigators of the burglary is admissible in court. As stated earlier PACE and the Common Law provide the courts with the power to decide whether or not to admit confessions to evidence. The court will exercise its discretion with regard to the factual circumstances present at the time that the accused person is stated to have made the confession.

In Mathew’s case there is evidence of oppression as envisaged by section 76 (2) of PACE. In the interview conducted by PC Walsh the accused confesses to being an alcoholic and as such he was suffering from withdrawal symptoms and requested for the assistance of a medical doctor. PC Walsh takes advantage of this condition and states that Matthew will not be released until he confesses to the crime. Further, his final statement where he states that he cannot take it any more points to a person 4 5

[1988] Crim LR 519 [1987] 3 All AR 481

whose will has been crumbled to the point where he is ready to confess to a crime he did not commit. The case of R v Mushtaq6 provided a wider scope for the definition of oppression. In that case the judge stated that oppressive conduct would be that which: “… excites hopes (such as the hope of release) or fears, or so affects the mind of the subject that his will crumbles and he speaks when otherwise he would have stayed silent.” Any confession obtained in such a scenario would be unreliable to the extent that the condition of the accused made him susceptible to suggestion just so that he could alleviate his suffering. From the final statement of the accused we can tell that he only confessed to the crime so as to remove himself from police custody.

It is trite law that any words by a police officer meant to induce or promise the accused person a better outcome if he confesses to the crime would render the confession inadmissible in court. This was the finding of the court in Regina v Fennel7 where the court held that a statement made by the prosecutor that it will be better for the accused if he spoke the truth amounted to an inducement and as such the confession was inadmissible. In the present case PC Walsh promise the accused person that he will only be released from custody if he confesses to the crime and not a moment sooner. This would amount to an inducement when one considers the discomfort that Matthew was in on account of hunger and his alcoholic condition.

Further, the accused is concerned about the well-being of his younger brother and is desperate to protect him. PC Walsh lies to the Matthew that both he and his brother were captured on CCTV cameras leaving the scene of crime. The confession statement that Matthew makes is designed to remove the weight of scrutiny from his brother. Such evidence is not reliable as it is clearly designed to save the skin of his younger brother even if it is to his own detriment.

The judge in Matthew’s case will consider the fairness of admitting the confession of Matthew into evidence against the probative value of the evidence. This is a case where the Investigating Officer acted in an unfair manner on several instances. For instance, the officer denies the accused person the chance to see his lawyer in order to force the confession out of him. In R v Glaves8, the accused person made admissions first when he was arrested and later after 8 days. The trial judge 6

[2005] 2 Cr.App.R. 32 [1881] 14 Cox’s Criminal Cases 607 8 [1993] Crim LR 685 7

excluded the first admission on the grounds of police misconduct but admitted the later admissions on the assumption that the accused had received legal advice.

However the assumption was erroneous and on appeal the appellate court directed that even the later admissions be excluded since the accused person was denied the chance to speak to a lawyer. It follows then that by the investigators denying the accused a chance to speak to a lawyer the confession was marred by manifest unfairness.

Additionally, the Officer lied about the amount and weight of evidence that they had against Matthew. She states that they found Matthew’s blood in the complainant’s house and that they also found Matthew’s hair at the crime scene which statements are both untrue and meant to intimidate Matthew. As such it would appear to a judicial body that the evidence was obtained unfairly and that admitting the same into evidence would occasion injustice upon the accused person. Consequently, the confession ought to be excluded from evidence. In fact the admissibility of confessions under the common law is based on voluntariness of the confession as was established in the case of Ibrahim v R9. In that case the court held that the prosecution must be able to demonstrate that the confession was voluntarily made for it to be admissible in a court of law.

As a consequence of the above analysis, the alleged confession of Matthew is not admissible in a court of law as it fails the tests set out in section 76 and 78 of the PACE. It is clear that the confession was not offered voluntarily hence it is of low probative value and its admission to evidence would be unfair on the accused person.

3. The potential impact on the case if the evidence is admitted The confession evidence would occasion serious consequences on Matthew if admitted. This is because the words of Matthew point to his guilt in the matter. If such words were to be admitted to evidence then the judge would instruct the jury to hear evidence relating to how voluntary the confession was and direct the jury to give the confession evidence the gravity that they in their opinion think it deserves.

The court has a general duty to direct the jury on any such matter that arises during the course of the trial which the court feels it would be appropriate to issue directions on.

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[1914] AC 599

It would be reasonable to expect that a jury hearing the matter would think that Matthew was guilty of the crime as charged and return a verdict of guilty. It would be an uphill task for the defence to convince a jury that Matthew was not actually guilty of the crime as alleged unless the defence can produce evidence of such probative value as to plant reasonable doubt within the minds of the members of the jury.

Section 76A (1) of the PACE provides that the confession of an accused person may be used as evidence in favour of his or her co-accused. The specific wording of the act provides: “In any proceedings a confession made by an accused person may be given in evidence for another person charged in the same proceedings (a coaccused) in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.” This particular section has great significance for the case of Matthew’s younger brother, James Wragg. This is because, in his confession, Matthew states that he committed the crime all on his own. In effect his words can be used to absolve James of all wrong doing as far as the offence is concerned.

However, the court will not always readily accept the confessions of the accused into evidence for the co-accused and may require that the admissibility of the confession be proved by the co-accused on a balance of probabilities. This provision is provided by section 76A (3) which states: “Before allowing a confession made by an accused person to be given in evidence for a co-accused in any proceedings, the court may of its own motion require the fact that the confession was not obtained as mentioned in subsection (2) above to be proved in the proceedings on the balance of probabilities”. Therefore, James may be required to show that the confession of his older brother was not acquired by oppression and that it was acquired in such circumstances as would render the confession reliable.

From the above submissions it is clear that admission of the confession would be severely prejudicial to Matthew’s case. It is quite likely that the confession would lead to his conviction especially with the added testimony of the complainant, Gill Kitson and the electronic evidence of the CCTV cameras. On the other hand, the confession may be enough to acquit James since Matthew confessed that he committed the crime on his own. Additionally, the other evidence on record does not place James on the scene of the crime. Further, the only witness to the crime, Gill Kitson, was not able to identify the second burglar.

4. The legal and factual basis on which the defence could challenge the evidence and the practical steps they would take to do this Section 76 of the PACE Act provides that if a confession is disputed by the maker then it shall not be admitted to evidence unless the prosecution can prove, beyond a reasonable doubt, that it was neither obtained through oppression of the person who made it nor was it obtained as a consequence of actions or words that were likely to render the confession unreliable. Additionally, the court may exclude evidence on grounds of unfairness where it considers that to admit the evidence would have a negative effect on the fairness of the proceedings as per section 78 of PACE. Section 82(3) provides: “Nothing in this Part of this Act shall prejudice any power of a court to exclude evidence (whether by preventing questions from being put or otherwise) at its discretion.” This section preserves the common law powers of the court to exclude evidence which was obtained in a manner that would prejudice the rights of the accused person.

The decision to admit or to exclude the confession will only be made after a judge has had opportunity to consider the facts existing at the time the confession was made. Further, the judge must be satisfied beyond reasonable doubt that the confession was given voluntarily. In order to successfully challenge the admission of the confession it would be necessary for the defence to oppose its admission and then demonstrate that the circumstances leading to the making of the confession were both oppressive and made such evidence unreliable.

The facts of the case demonstrate that the confession was not made voluntarily. In the first instance the accused was denied access to a lawyer who would have advised him of his legal right to remain silent. It can also be seen that the accused was denied food or rest which exacerbated his alcoholic condition. These circumstances may be considered oppressive which would then render the confession inadmissible. Further, the facts of the case show that the investigating officer misrepresented that they had considerable evidence against both Matthew and his brother. This information is likely to have caused the accused person to make a false confession so as to ensure his younger brother did not end up in police custody. The confession would therefore be unreliable as it was made as a direct response to circumstances that were coercive. Finally, the facts of the case reveal that the actions of PC Walsh were prejudicial to Matthew’s case as they were against

both the PACE Act and Code C of the Service Police Codes of Practice and for this reason ought not to be admitted.

Once the defence opposes the admission of the confession the court will be obliged to conduct a trial within the trial otherwise known as voir dire. Here both the prosecution and the defence will make submissions through production of evidence to support their respective positions on the admissibility of the confession. It is important to remember that section 76 imposes the burden of proof in these proceedings on the prosecution to prove that the evidence was obtained in a regular manner and that its admission would not be unfair on the accused person.

However, in the event that the confession is admitted to evidence the defence will have to demonstrate to the jury that such confession is of low probative value and therefore unreliable. This can be done by making reference to the factual circumstances during the interrogation that render the evidence unreliable. As stated earlier Matthew was held in custody for a long duration of time without access to a lawyer or medical assistance. Further, his confession was made out of a desire to remove himself from custody and prevent the arrest of his brother. It would therefore be possible to show a jury that the evidence of the confession is not reliable enough to secure a conviction.