9.11.2017
A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004)
"(1) 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.
(2) If, in any proceedings where the prosecution proposes to give in evidence a confession
made by an accused person, it is represented to the court that the confession was or may
have been obtained –
(a) by oppression of the person who made it; or
(b) in consequence of anything said or done which was likely, in the
circumstances existing at the time, to render unreliable any confession which
might be made by him in consequence thereof, the court shall not allow the
confession to be given in evidence against him except in so far as the
prosecution proves to the court beyond reasonable doubt that the confession
(notwithstanding that it may be true) was not obtained as aforesaid."
The section did not prevent a co-accused from introducing evidence of a confession obtained in breach
of subsection (1) but section 76A, not yet in force, severely restricts the right of a co-accused to take
that action.
89. The point arose at the hearing as to whether the common law rule was based on possible lack of
reliability alone (Mr Burnett) or whether also on the abhorrence of the law to confessions obtained by
way of statements which were not voluntary (Mr Emmerson). In my judgment, the second has been a
major factor.
90. The point was considered by Lord Hailsham of St Marylebone in DPP v Ping Lin [1976] AC 574 at
600. Having cited the rule and its history, Lord Hailsham stated, at page 600:
"By the judiciary, though it ought not to be extended, it must by no means be whittled
down. It bears, it is true, all the marks of its origin at a time when the savage code of the
eighteenth century was in full force. At that time almost every serious crime was
punishable by death or transportation. The law enforcement officers formed no disciplined
police force and were not subject to effective control by the central government, watch
committees or an inspectorate. There was no legal aid. There was no system of appeal. To
crown it all the accused was unable to give evidence on his own behalf and was therefore
largely at the mercy of any evidence, either perjured or oppressively obtained, that might
be brought against him. The judiciary were therefore compelled to devise artificial rules
designed to protect him against dangers now avoided by other and more rational means.
Nevertheless, the rule has survived into the twentieth century, not only unmodified but
developed, and only Parliament can modify it now from the form in which it was given
classical expression by Lord Sumner."
91. Other cases confirm that the truth of the confession was not relevant to its admissibility. In Chan Wei
Kueng v R [1967] 2 AC 160, it was held that on a voir dire as to the admissibility of a defendant's
challenged statement, the prosecution should not ask questions in cross-examination of the defendant
with the object of establishing the truth of the statement. When a statement is ruled inadmissible as
contrary to the common law rule, evidence of what was said during the voir dire is inadmissible.
Giving the judgment of the Judicial Committee of the Privy Council in Wong Kam-Ming v The Queen
[1980] AC 247, Lord Edmund-Davies, at page 256H, cited with approval the judgment of Hall CJ in
the Canadian case of R v Hnedish [1958] 26 WWR 685 at 688:
"Having regard to all the implications involved in accepting the full impact of the
Hammond decision [1941] 3 All ER 318 which can, I think, be summarised by saying that
regardless of how much physical or mental torture or abuse has been inflicted on an
accused to coerce him into telling what is true, the confession is admitted because it is in
fact true regardless of how it was obtained, I cannot believe that the Hammond decision
does reflect the final judicial reasoning of the English courts… I do not see how under the
guise of 'credibility' the court can transmute what is initially an inquiry as to the
http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html
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