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Report No. 94

4.7. Confessions.-

Confessions constitute the third category of cases in which discretion is exercised. The judge's discretion in England to exclude legally admissible confessions is of a different type.1 Few items of evidence can be more probative than a confession, provided it was not made in circumstances giving rise to a reasonable doubt concerning its reliability. The proviso mentioned in the preceding sentence lies at the root of the exclusionary rule of English law, which has been succinctly formulated in the following terms:-

"It is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person to a question put by police officer and of any statement made by that person, that it shall have been voluntary, in the sense that it has not been obtained from him by fear of prejudice or hope of advantage, exercised or held out by a person in authority, or by oppression".2

This is one of the principles to which the Judges' Rules of 1964 are expressly stated to be subject.3 The Rules themselves are no more than guides to police officers in relation to the taking of statements providing for the administration of a caution at different stages of an interrogation. The introduction concludes with the remark that non-conformity with the Rules may render answers and statements liable to be excluded from evidence in subsequent criminal proceedings. The judge thus has a discretion to exclude a confession obtained in breach of the Rules, although it is legally admissible. In fact, the concluding remark of the introduction simply recognises the existence of a discretion to exclude confessions which are "voluntary" within the above definition which had existed before the Rules were first formulated4 in 1921.

1. Cross Evidence, (1979), p. 32. See note Confession-Recent Development in England, (1980), Vol. I, CLQ 327 (345).

2. Cross Evidence, (1979), p. 32.

3. The Rules are set out in (1964) 1 All ER 237. See now Home Office circular No. 89/Judges Rules and Administrative Directions of the Police, 1978, p. 6.

4. Cross Evidence, (1979), p. 32.

Evidence Obtained Illegally or Improperly - Proposed Section 166a of the Indian Evidence Act, 1872 Back

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