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 20/113