Report No. 69

II. Doctrine of Confirmation

11.23. Confirmation by subsequent facts.-

The section is based on what is usually called the doctrine of confirmation by subsequent facts. This doctrine might be more felicitously called the doctrine of confirmation by subsequently discovered facts. It is as old as the modem confession rule was first clearly enunciated in Warickshall's case1. That case also raised the problem of the admissibility of facts discovered in consequence of an inadmissible confession. In that case, as the result of a confession otherwise inadmissible, stolen property concealed in the prisoner's lodgings was found. It was contended that as the property was discovered as the result of an inadmissible confession, the evidence of the actual discovery ought also to be excluded. The contention was rejected by the court, which observed-

"This principle respecting confessions has no application whatever as to the admission or rejection of facts, whether the knowledge of them be obtained in consequence of an extorted confession or whether it arises from any other source;2 for a fact, if it exists at all, must exist invariably' in the same manner whether the confession from which it is derived be in other respects true or false. Facts thus obtained, however, must be fully and satisfactorily proved without calling in the aid of any part of the confession from which they may have been derived; and the impossibility of admitting any part of the confession as a proof of the fact clearly shows that the fact may be admitted on other evidence; for, as no part of an improper confession can be heard, it can never be legally known whether the fact was derived through the means of such confession or not".

1. Warrickshall's case, (1783) 1 Leach CC 283 (284).

2. The underlined words will be discussed later.

11.24. Comment of the Reporter and difficulty of applying the test.-

It should be noted, however, that in Warickshall's case1it was held that no part of the otherwise inadmissible evidence could be let in by reason of the discovery of the property. This particular point has given rise to an uncertain body of case law in England. In R. v. Mosey, (1783) 1 Leach CC 265 n., it was held-as in R. v. Warrickshall-that no part of the concession was admissible, although facts discovered in consequence were admissible.

There is a comment in Leach's Criminal cases, following his note on R. v. Mosey, (1783) 1 Leach CC 265 n.in which he states that it would seem that so much of the confession as relates strictly to the fact discovered should be admitted, as the reason why improperly induced confessions are excluded is the danger of falsity, and the fact that property or some other material fact is discovered shows that so much of the confession as immediately relates to that property or fact is true.

1. Para. 11.23, supra.

2. See General discussion.