Report No. 69
10.31. Dixon J.'s observations as to self-incrimination.-
The High Court of Australia, on the facts, held the confession to be admissible, and held that the confession was voluntary. It was observed that in any event the Judges' Rules did not bind Australian Courts. But Dixon J.'s observations are of interest in regard to the principle to be applied-
"It is apparent that rule of practice has arisen, deriving almost certainly from the strong feeling for the wisdom and justice of the traditional English principles expressed in the precept nemo teneour se ipsum accussare."
10.32. The English cases on the subject of what is an illegal inducement to confess, are very numerous, and far from consistent with each other. But there can be little doubt that the rule which excludes confessions unlawfully obtained, is regarded as a very salutary one.
10.33. Burden of proof of voluntariness on the prosecution.-
It must be taken to be settled by Reg. v. Thompson, (1893) 2 OB (CCR), affirming the ruling of Parke B., In R.V. Warringham, 15 Jur 318: 2 Den CC 430 (447), note; R. v. Rose, 18 Cox, 18 Cox 717, that, in order that evidence of a confession may be admissible, it must be affirmatively proved that such confession was free and voluntary, that is, was not preceded by any inducement to the prisoner to make a statement held out by a person in authority, or that it was not made until after such inducement had clearly been removed; but it is also clear that in the absence of inducement, the answers of a person charged to the questions of a police constable, are admissible, subject to the discretion of the Court to exclude answers obtained without compliance with the Judges' Rules.
All questions relating to the admissibility of extra-judicial confessional statements are of course, to be decided at the trial by the Judge, and not by the jury; and such questions may now be appealed, or reserved for the decision of the Court of Criminal Appea1.1
1. The Criminal Appeal Act, 1907.
10.34. Confessions-some English cases.-
It is well recognised in England that admissions and confessions are exceptions to the rule against hearsay. If a statement or confession is made by the accused (the statement may be relevant as an admission), evidence of such statement or confession may be given at the trial, if the prosecution is able to prove affirmatively that it was made freely and voluntarily. The Courts draw a distinction between a moral exhortation and temporal fear. Thus, it has been held,1 that where an employer advised his suspected employee to tell the truth "so that if you committed a fault you may not add to it by stating what is untrue", the advice was of a moral character, and not sufficient to render a subsequent confession inadmissible.
1. Reg. v. Jarvis, 1867 LR 1 CCR 96.
10.35. In another English case of Rex v. Wild, (1935) 1 Mood CC 452, a boy of 13 years was charged with murder, and was told: "Now, kneel you down, I am going to ask you a very serious question and I hope that you will tell me the truth in the presence of the Almighty". In consequence, the boy made certain statements. These were held not to render it inadmissible. In the case of Richards1 a girl had been accused of poisoning, and was told by her mistress: "If you don't tell me all about it, I will send for a constable". The confession made subsequently was rejected, since the threat would have made obvious, to the girl's mind, the desirability of making a confession.
1. Rex v. Richards, (1832) 5 C&P 318.
10.36. The accused has long been entitled1 to demand that an involuntary confession should be excluded, and the Introduction to the Judges' Rules takes care to state that. "The principle (that voluntariness is a fundamental condition of admissibility) is overriding and applicable in all cases. Within that principle the following rules are put forward as a guide to police officers conducting investigations."
1. Ibrahim v. Rex, 1914 AC 599.
10.37. Implicit threats.-
Statements by accused persons have been considered involuntary, not only when resulting from an explicit threat, such a.- "you had better tell the truth". But there seems to be little case law defining the precise scope of "involuntariness".- especially that resulting from tacit intimidation. Judges are known to take a dim view of coercion in any form, and the prosecution consequently does not attempt to make direct use of arguably involuntary statements1. If there has been no intimidation or promise, but the accused has been tricked into speaking, the statement will be considered "voluntary",2 but case-law indicates that the judge may exclude it as matter of discretion. if the tactics seem, in some sense, "unfair".3
1. See discussion in Culombe v. Connecticut, (1961) 367 US 568 (598, 599) (opinion of Frankfurter, J.).
2. (a) Rex v. Firth, (1913) 6 Cr App R 152 (dictum). (b) King v. Robinson, (1917) 2 KB 108.
3. Reg. v. Hinted, (1898) 19 Cox Cri Cas 16 (South-Eastern Cir.).
10.38. Judges' Rules-violation of.-
We shall now deal with the Judges' Rules. Police investigating a crime, when they wish to question someone held on a charge. must comply with the Judges' Rules,1 which define the right to question at the various stages of investigation. There is no direct judicial control over the initiation or supervision of police activities or conduct in England. But judicial control is exercised indirectly, through the rules which the judges apply to determine the admissibility of evidence at the trial, and some additional protection is clearly afforded by the law governing the civil wrongs of unlawful imprisonment and. malicious prosecution.
1. For Judges' Rules, see Appendix 4 to this note.
10.39. Principle of the Rules.-
The fundamental principle underlying the rules applied by the courts is that answers and statements made during the course of police inquiries are admissible only if they have been made voluntarily- "in the sense that they have not been obtained by fear of prejudice or hope of advantage, exercised or held out by a person in authority, or by oppression. To assist themselves and provide guidance to the police in applying this principle, the judges have devised their own set of Rules, which are officially known as "the Judges' Rules".
10.40. J. Evidence obtained in violation of the Judges' Rules will not always be rejected. It was made clear from the beginning that "these rules have not the force of law; they are administrative directions the observance of which the police authorities should enforce upon their subordinate as tending to the fair administration of justice."1
1. King v. Voisin, (1918) 1 KB 531 (539).