Confessions and Cognate Matters: An English View

Author(s): Rupert Cross

Source: Columbia Law Review , Jan., 1966, Vol. 66, No. 1 (Jan., 1966), pp. 79-93
Published by: Columbia Law Review Association, Inc.

Stable URL: https://www.jstor.org/stable/1120406

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms

Columbia Law Review Association, Inc. is collaborating with JSTOR to digitize, preserve and
extend access to Columbia Law Review

This content downloaded from

65.0.59.216 on Mon, 12 Sep 2022 06:15:20 UTC
All use subject to https://about.jstor.org/terms
 CONFESSIONS AND COGNATE MATTERS:
AN ENGLISH VIEW
RUPERT CROSS*

This limited account of English law and practice is intended to raise ques-
tions for discussion on the following aspects of proceedings on indictment: (1)
the admissibility of confessions; (2) the admissibility of facts discovered in
consequence of inadmissible confessions (Wigmore's doctrine of confirmation
by subsequent facts) ; (3) the interrogation of suspects by the police; (4) the
position of an accused in custody while awaiting trial, but only so far as the
preparation of his defense is concerned; and (5) pre-trial publicity. Accord-
ingly, the references to authority are minimal, and I hope that I may be for-
given for the manifest inadequacy of my knowledge of the relevant aspects of
the law and practice in the United States.

There is no doubt that comparative discussions of the subjects I have

mentioned will be most fruitful, but in making such comparisons, considera-
tion must be given to those fundamental differences which exist between the
legal systems of the two countries. First and foremost among these differences
is the absence in England of any document of a sanctity comparable to that
attributed to the Constitution of the United States. Consequently, it has not
proved as difficult for the English judges to confer broad judicial discretion
on themselves with regard to the admissibility of evidence in a criminal case
as it would have been for American judges to do so. In England, the admis-
sibility of confessions obtained as a result of prolonged interrogation, or with-
out caution against self-incrimination, or without information concerning the
right to the presence of a legal adviser, are almost entirely dependent on the
discretion of the trial judge. In the United States, on the other hand, these
questions have been held to raise constitutional issues. It would have been
difficult, if not impossible, for an American federal judge to have held that,
although a confession had been obtained in breach of one of the provisions of
the first eight amendments to the Constitution (the American Bill of Rights)
he nevertheless had a discretion to admit or reject it; similarly, once the
Supreme Court had concluded that the fourteenth amendment incorporates
wholly or in part the provisions of the fourth, fifth, and sixth amendments, it
would have been difficult to conclude that a state judge has a discretion with
regard to the admissibility of evidence obtained in breach of the fourteenth
amendment.

Such authority as there is points to the conclusion that in England the

admissibility of illegally obtained evidence is, at most, a matter of judicial dis-

* Vinerian Professor of English Law, Oxford University. M.A., Oxon, 1937; B.C.L.,
1937; D.CL., 1958.

This content downloaded from

65.0.59.216 on Mon, 12 Sep 2022 06:15:20 UTC
All use subject to https://about.jstor.org/terms
80 COLUMBIA LAW REVIEW [Vol. 66:79

cretion.1 Whether this is a desirable state of affairs is debatable, but there can
be no doubt that the pronounced American tendency to reject altogether "the
fruit of the poisoned tree" is at first sight more robust than our approach to
the problem. This difference arises primarily because evidence obtained
througlh unreasonable searches and seizures is obtained in violation of the
fourth amenidment to tlae Constitution. However, there may be a further rea-
son for the different approaches of our two countries to this problem. The
American judge is far more profoundly convinced than the English judge that
one of the best ways of encouraging proper police methods of detection and
interrogation is to impose a total prohibition on evidence that has been im-
properly obtained; whether this means that the practices of law enforcement
agencies are more frequently improper in the United States than they are in
this country is open to question, but it is a common English belief that this
is so.
The underlying, problem with which the first three subjects of this paper
are concerned is that of balancing the desirability of a fair trial after fair
police investigation against the undesirability of acquitting someone who is
almost certainly guilty of the crime with which he is charged. The balance is
not one that is ever likely to be perfectly held and, in both countries, there are
no doubt many inconsistencies. The fact remains, however, that the basic
assumptions of the two systems are the same with regard to the admissibility
of confessions, the admissibility of facts discovered in consequence of inadmis-
sible confessions, and the interrogation of suspects. In each country there is
much solicitude about the reception of confessions which might be untrue,
much concern over fairness to the accused, and an objection verging perhaps
on the pathological to a man's incriminating himself out of his own mouth. In
fact, this last point would be a good subject for an entire legal conference.
Detailed discussion would have to include the pros and cons of leaving the
accused with what amounts to a privilege not to testify. The opinion has been
voiced in some quarters in England that, at some stage of a criminal trial, the
accused should be obliged to submit himself to questioning by counsel for the
prosecution with the knowledge that refusal to answer questions would war-
rant an inference against him.
The differences between the two systems which render difficult a com-

1. See Kuruma v. The Queen, [1955] A.C. 197 (P.C.) (Kenya) (a decision of the
Privy Council based on English law in which evidence obtained in consequence of a
search by an unauthorized officer was admitted, though it was stated that an English
court has a discretion to exclude evidence obtained by a trick, and that nothing in the
judgment was to be taken to affect the rules with regard to confessions) cf. Mapp v.
Ohio, 367 U.S. 643 (1961). The contrast between the following remarks is striking:
"It matters not how you get it; if you steal it even, it would be admissible in evidence."
Reg. v. Leatham, 8 Cox Crim. Cas. 498, 121 Eng. Rep. 589 (Q.B. 1861). "However
much in a particular case insistence upon such rules may appear as a technicality that
inures to the benefit of a guilty person, the history of the criminal law proves that
toleranice of short-cut methods in law enforcement impairs its enduring effectiveness."
Miller v. United States, 357 U.S. 301, 313 (1958).

This content downloaded from

65.0.59.216 on Mon, 12 Sep 2022 06:15:20 UTC
All use subject to https://about.jstor.org/terms
 1966] THE DITCHLEY PAPERS 81

parative discussion of this paper's fourth and fifth subjects-the accused in

custody and pre-trial publicity-are respectively due to differences in criminal
procedure and the law relating to contempt of court. The position of an
accused with regard to the preparation of his defense is rendered wholly dif-
ferent in England from his position in the United States by our committal
procedure. Before the accused is indicted he must have been committed for
trial after a preliminary hearing before magistrates. At this hearing the pros-
ecution witnesses will have given evidence in the presence of the accused and
will have been subject to cross-examination by him; their evidence will have
been reduced to signed depositions of which the accused will in due course be
supplied with a copy, and the accused will have been given the opportunity of
making a statement and calling evidence. The pros and cons of the English com-
mittal proceedings have been much canvassed recently; these proceedings un-
doubtedly operate greatly in favour of the accused because he receives full
notice of the case against him without being placed under any sort of obliga-
tion to disclose the nature of his defense or the names of his witnesses. But
those who object to our committal proceedings in their present form do not do
so on the ground that they are too favourable to the accused, although some
English commentators consider that the accused should be obliged to disclose
his defense before trial. Instead, objections are based primarily on the delay
and what some would call the waste of time occasioned by the procedure. Sug-
gestions for some kind of substitute under which the accused receives notice
of the case against him without a preliminary hearing are made from time to
time, but there is no indication that they will be acted on in the immediate
future.
The rigours of our law of contempt of court by means of press publica-
tion concerning pending proceedings have recently been mitigated to some ex-
tent ;2 but the mitigations only concern innocent disseminators and publishers
who were unaware that a prosecution was pending. The degree of control over
the press through the law of contempt of court appears to be so much greater
in England than in America that we do not have a problem of publicity of
comparable magnitude. However, the question of press reports of committal
proceedings has recently come to the fore, and it will be the sole topic under
the fifth section of this paper.

I. THE ADMISSIBILITY OF CONFESSIONS

A. Voluntariness

In English, as in American law a confession is inadmissible unless it is

shown to have been "voluntary," but the tests for determining "voluntariness"

2. See Administration of Justice Act, 1960, 8 & 9 Eliz. 2, c. 65, ?? 12, 13. The
whole subject of contempt of court was dealt with in JUSTICE, CONTEMPT OF COURT
(1959).

This content downloaded from

65.0.59.216 on Mon, 12 Sep 2022 06:15:20 UTC
All use subject to https://about.jstor.org/terms
82 COLUMBIA LAW REVIEW [Vol. 66:79

may vary considerably. The English case law is confused, and this is not the
place to discuss the authorities at length. The most frequently quoted judicial
statement of the English law is that of Lord Sumner in Ibrahim v. The King:3
"[N]o statement by an accused is admissible in evidence against him unless
it is shewn by the prosecution to have been a voluntary statement, in the sense
that it has not been obtained from him either by fear of prejudice or hope of
advantage exercised or held out by a person in authority." An even narrower
definition of "voluntariness" has occasionally been employed: "A confession
or admission must be excluded if it is made (i) in consequence of (ii) any
inducement (iii) of a temporal character (iv) connected with the accusation
or relating to the charge (v) held out to the accused by a person having some
authority over the subject-matter of the charge or accusation."4 It is more nar-
row because of the requirement that the inducement must be connected with
the accusation or related to the charge. The requirement has certainly been
stressed in some of the English cases, but it has been ignored in others.
This requirement is not mentioned in the statement of the principle in the
new English Judges' Rules which reads:

(e) 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 a 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.5

This rule approximates more closely than any other English statement
one of the latest American tests, according to which "if an individual's 'will
was overborne' or if his confession was not 'the product of a rational intellect
and free will,' his confession is inadmissible because coerced."6 It must be
admitted, however, that there is very little English authority on the admis-
sibility, as a matter of law, of confessions made by those who were mentally
deranged or under the influence of drink or drugs." Perhaps the truth is that
confessions obtained from persons in these conditions would nowadays so
obviously be rejected by any judge in the exercise of his discretion that it
makes no difference whether the confession is said to be inadmissible as a
matter of law or merely liable to be rejected at discretion.

3. [1914] A.C. 599, 609 (P.C.) (Hong Kong).

4. Regina v. Joyce, [1958] 1 Weekly L.R. 140, 142 (Cent. Crim. Ct. 1957)
(Slade, J.).
5. Juidges' Rules of the Queen's Bench Division, Principle (e), [1964] 1 All E.R. 237
n.2 [hereinafter referred to as Judges' Rules].
6. Warren, C.J., in Townsend v. Sain, 372 U.S. 293, 307 (1963).
7. In the old case of Rex v. Spilsbury, 7 C. & P. 187, 173 Eng. Rep. 82 (Stafford
Assiz. 1835), a confession obtained from someone who was drunk was held to be
admissible but this was before the exclusionary discretion was developed. Cf. Townsend
v. Sain, 372 U.S. 293 (1963) (confession made under influence of truth serum ex-
cluded) ; Fikes v. Alabama, 352 U.S. 191 (1957) (confession of schizophrenic ex-
cluded).

This content downloaded from

65.0.59.216 on Mon, 12 Sep 2022 06:15:20 UTC
All use subject to https://about.jstor.org/terms
 1966] THE DITCHLEY PAPERS 83

There is much to be said for giving legislative effect to a statement on

the lines of principle (e) of the Judges' Rules. If legislation is to be con-
sidered, reference might also be made to the American Uniform Rules of
Evidence which provide the following exception to the rule against hearsay:

In a criminal proceeding as against the accused, a previous state-

ment by him relative to the offense charged if, and only if, the
judge finds that the accused when making the statement was con-
scious and was capable of understanding what he said and did, and
that he was not induced to make the statement (a) under compulsion
or by infliction or threats of infliction of suffering upon him or an-
other, or by prolonged interrogation under such circumstances as to
render the statement involuntary, or (b) by threats or promises
concerning action to be taken by a public official with reference to
the crime, likely to cause the accused to make such a statement
falsely, and made by a person whom the accused reasonably believed
to have the power or authority to execute the same.8

A further candidate for consideration would be Section 20 of the New

Zealand Evidence Act:9

A confession tendered in evidence in any criminal proceeding shall

not be rejected on the ground that a promise or threat or any other
inducement (not being the exercise of violence or force or other
form of compulsion) has been held out to or exercised upon the
person confessing, if the Judge or other presiding officer is satisfied
that the means by which the confession was obtained were not in
fact likely to cause an untrue admission of guilt to be made.

This formulation at least has the merit of avoiding the technicality of some
of the earlier English decisions in which remarks such as "You had better
tell the truth" were held, as a matter of law, to have rendered confessions
inadmissible.

B. The Burden of Proof

Those who consider that some of the technicalities which have just
been mentioned render the English test of voluntariness too favorable to
the accused sometimes suggest that the burden of proof should be reversed
so that it would be necessary for the accused to satisfy the judge, and pre-
sumably also the jury, on the balance of probability, that the confession
was not a voluntary one.

8. UNIFORM RULES OF EVIDENCE, Rule 63 (6).

9. Evidence Amendment Act, Act No. 29 of 1950, ? 3 (New Zealand). See also
Evidence Act, 1958, Act No. 6246, ? 149 (Victoria):
No confession which is tendered in evidence shall be rejected on the ground that
a promise or threat has been held out to the person confessing, unless the judge
or other presiding officer is of opinion that the inducement was really calculated
to cause an untrue admission of guilt to be made; nor shall any confession which
is tendered in evidence be rejected on the ground that it was made or purports
to have been made on oath.

This content downloaded from

65.0.59.216 on Mon, 12 Sep 2022 06:15:20 UTC
All use subject to https://about.jstor.org/terms
84 COLUMBIA LAW REVIEW [Vol. 66:79

C. The Voir Dire

Before 1953, the English courts appear to have acted upon what, in the
United States, is sometimes called the orthodox view with regard to the
function of the judge and jury in relation to the admissibility of confessions.
The judge decided the issue of voluntariness in the absence of the jury and,
if the judge held that the confession was voluntary, it was for the jury to
determine the weight to be attached to it. The decision of the Court of
Criminal Appeal in Regina v. Bass'0 points towards adoption of the Massa-
chusetts procedure under which, even though the judge rules that the colI-
fession is admissible, he must instruct the jury to disregard it altogether if
they think that it was not voluntary. Delivering the judgment of the court
in Bass, Byrne, J. declared that, "while it is for the presiding judge to rule
whether a statement is admissible, it is for the jury to determine the weight
to be given to it if he admits it, and thus, when a statement has been admitted
by the judge he should direct the jury to apply to their consideration of it
the principle as stated by Lord Sumner, and he should further tell them
that if they are not satisfied that it was made voluntarily, they should give
it no weight at all and disregard it."" Literally construed, these last few
words would mean that, even though a jury believed a confession to be
true, they should reject it if not satisfied that it was volutntary because it had
been obtained in consequence of some fairly mild induicement; nevertheless,
later English cases support this dictum12 although it has been criticized in
the High Court of Australia.13
I would like to lend my respectful support to the following expression
of the orthodox view by an American judge of an earlier generation:

It is the established law of tl-his state, and that which prevails almost
universally, that confessions of a defendant are not admissible
against him, in a criminal prosecution, unless volutntarily made.
Whether voluntarily made or not, we hold, is a question of law, to
be determined by the court from the facts, as a condition precedent
to their admission. . . Having been declared competent and admis-
sible, they are before the jury for consideration. The jury have no
authority to reject them as incompetent. But the jury are the sole
judges of the truth and weight to be given confessions, as they are
of any other fact . . The court passes upon the facts merely for
the purpose of determining their competency and admissibility. The
jury pass upon the same facts, and in connection with other facts,
if there are other facts, in determining whether the confessions are
true, and entitled to any, and how muclh, weight. The court and jury

10. [1953] 1 Q.B. 680 (Ct. Crim. App.).

11. Id. at 684. (Emphasis added.)
12. See R. v. Fudge, [1965] CRIM. L. REV. (Eng.) 52 (Ct. Crim. App. 1964);
R. v. Parkinson, [1964] CRIM. L. REV. (Eng.) 398 (Ct. Crim. App.); R. v. Burgess,
[1962] CRIM. L. REV. (Eng.) 469 (Ct. Crim. App.); R. v. Sutherland, [1959] CRIM.
L. REV. (Eng.) 440 (Ct. Crim. App.).
13. See Basto v. The Queen, 91 Commw. L.R. 628 (Austl. 1954).

This content downloaded from

65.0.59.216 on Mon, 12 Sep 2022 06:15:20 UTC
All use subject to https://about.jstor.org/terms
 1966] THE DITCHLEY PAPERS 85

each have a well-defined and separate province. It follows that,

although the jury may come to the conclusion that the confessions
were not voluntary, yet if, from extrinsic evidence, or from their
character and the circumstances, the jury are satisfied that they
are true, the jury should act upon them. Being competent, and the
jury being satisfied beyond a reasonable doubt of their truth, the
jury may very properly convict on such evidence.14

The English courts have never gone the length of the now discredited
New York procedure15 which allowed the issue of the voluntariness of the
confession to be decided in the first instance in the presence of the jury, the
judge only withdrawing the issue from that body if satisfied that there was
insufficient evidence of voluntariness; but one of the most recent decisions
on the subject by the Court of Criminal Appeal suggests a possible further
decline in the role of the judge at the voir dire in confession cases, for it
seems to require that the judge simply decide, in the absence of the jury,
whether there is evidence capable of supporting a finding that the confession
was not voluntary and that it is then for the jury to decide whether the con-
fession was voluntary."6
Two further problems of determining voluntariness deserve brief men-
tion here. The assignment to the jury of co-responsibility for determining
the voluntariness of a confession might be expected to affect the standard of
proof required at the voir dire. Nevertheless, according to such English
decisions as there are, voluntariness must be proved to the judge beyond a
reasonable doubt.17 The High Court of Australia, on the other hand, has
held that the appropriate standard is that of the preponderance of probabil-
ity.18 Finally, consideration should be given to the propriety of asking the
accused at the voir dire whether his confession is true. Such a procedure
was approved in R. v. Hammnond,'9 but the case has been questioned in
Canada.20

II. THE ADMISSIBILITY OF FACTS DISCOVERED IN CONSEQUENCE

OF INADMISSIBLE CONFESSIONS

What is the position if stolen property or other incriminating facts are

discovered in consequence of an inadmissible confession? Sometimes the dis-
covered facts have probative value without reference to the confession be-
cause they are evidence against the accused for some other reason, such as
the presence of finger-marks on property, or the presence of stolen property

14. Coleman, J., in Burton v. State, 107 Ala. 108, 129-30, 18 So. 284, 290 (1895).
15. See Jackson v. Denno, 378 U.S. 368 (1964).
16. R. v. Cleary, 48 Cr. App. R. 116 (Ct. Crim. App. 1963).
17. See R. v. Sartori, [1961] CRIM. L. REV. (Eng.) 397 (Cent. Crim. Ct.).
18. Wendo v. The Queen, 109 Commw. L.R. 559 (Austl. 1963).
19. 28 Cr. App. R. 84 (Ct. Crim. App. 1941).
20. See Rex v. Weighill, [1945] 2 D.L.R. 471 (Brit. Col.); Regina v. Hnedish, 26
West. Weekly R. (n.s.) 685 (Q.B. Sask. 1958).

This content downloaded from

65.0.59.216 on Mon, 12 Sep 2022 06:15:20 UTC
All use subject to https://about.jstor.org/terms
 86 COLUMBIA LAW REVIEW [Vol. 66:79

in his house. On other occasions, proof of the facts would be useless unless
it were also permissible to refer to at least part of the confession.

As a matter of law, there are four possible solutions: (a) reject the
facts as "fruits of the poisoned tree," even though they have probative value
independently of the confession; (b) admit the facts, but never admit any
part of the confession, thus leaving the question whether it is any use
proving the facts to depend upon the particular circumstances; (c) admit
that part of the confession which relates to the facts on the ground that it has
been verified; (d) admit the whole confession because, being demonstrably
true in part, it is probably true in whole.

Support for all four solutions can be found in the English decisions,
the most recent of which is perhaps the most difficult of them all because it
holds tlhat, although facts discovered in consequence of inadmissible con-
fessions are sometimes admissible, they may not be proved when they con-
sist of books and documents revealing fraud and produced in consequence
of a promise of leniency in the event of production.2'

The American state decisions also reveal a variety of conclusions; so

far as the Supreme Court is concerned, the author of a recent thesis assures
us that consistency with its recent decisions necessitates total exclusion on
the fruits of the poisoned tree principle.22

Anyone wlho approves the application of a broad judicial discretion to

the admissibility of evidence in criminal cases would no doubt leave the
admissibility of facts discovered in consequence of inadmissible confessions
to the discretion of the trial judge. As things stand, it is clear that the
English courts are much less inclined to apply the fruit of the poisoned tree
doctrine to this problem than the American. In Regina v. Smith,23 for
instance, a confession which the Court of Criminal Appeal plainly regarded as
inadmissible was treated as a proper basis for the initiation of inquiries.
After a barrack-room brawl, a regimental sergeant-major had assembled
his men and told them that they were not leaving until one of them confessed.
Lord Parker, C.J. said: "What the sergeant-major did might well have been
a very useful course of action in order to enable further inquiries to be made,
but the court is satisfied that if the only evidence against the prisoner was a
confession obtained in those circumstances, it would be quite inadmissible
at his trial. It has always been a fundamental principle of the courts, and
something quite apart from the Judges' Rules of Practice, that a prisoner's
confession outside the court is only admissible if it is voluntary."24

21. Rex v. Barker, [1941] 2 K.B. 381 (Ct. Crim. App.).

22. See Quint, The Exclusion of Confessions from Evidence in England and the
United States (Oxford 1965) (unpublished thesis in Bodleian Library).
23. [1959] 2 Q.B. 35 (Ct. Crim. App.).
24. Id. at 39.

This content downloaded from

65.0.59.216 on Mon, 12 Sep 2022 06:15:20 UTC
All use subject to https://about.jstor.org/terms
 1966] THE DITCHLEY PAPERS 87

III. THE INTERROGATION OF SUSPECTS

While English judges have consistently held that they have a discre-
tion to reject confessions, or other items of evidence inculpating the accused,
obtained by the police in circumstances thought to be improper, the matter of
police interrogation has, since 1912, been the subject of the Judges' Rules.

A. The Judges' Rules

A fresh set of the Rules was published at the beginning of 1964.25

Since the contents of the Rules are well known in American, as well as
English legal circles, the ensuing discussion is very brief. The Rules are for
the guidance of the police and do not have the force of law. If a statement
obtained in breach of them is not voluntary within the principles discussed
earlier in this paper, it will be inadmissible as a matter of law; otherwise
its admissibility is a matter of judicial discretion.
The principles to which the Rules are expressly stated to be subject
may be of interest as a basis of discussion. With the exception of principle
(e), dealing with voluntariness, they have not been greatly canvassed in the
cases and some think that both the principles and the Rules themselves
should be accorded statutory authority.
The authority for principle (a), which states in broad form that there
is a duty on the part of citizens "to help a police officer to discover and
apprehend offenders,"26 is disputable. No doubt there is a common-law duty
to assist arrest at request, and as things stand, failure to answer police
questions may amount to misprision of felony, but this is subject to the
privilege against self-incrimination,27 and the offense may well be abolished
shortly.28 In a very limited class of cases, failure to answer certain
police questions is a statutory offense,29 but it is sometimes contended that,
subject at any rate to the privilege against self-incrimination, failure to
answer all reasonable police questions relating to offenses of any sub-
stantial degree of seriousness should be an offense. Closely connected with
this is the question whether the police should have power to detain persons not
under arrest for the purpose of questioning. The police certainly have no such
power at present as is evident from principle (b).3
Principle (c) provides that "every person at any stage of an investiga-
tion should be able to communicate and to consult privately with a solicitor.'"3

25. See [1964] 1 All E.R. 237 & n.2.

26. Judges' Rules, Principle (a).
27. R. v. King, [1965] 1 All E.R. 1053 (Ct. Crim. App.).
28. See SEVENTH REPORT OF THE CRIMINAL LAW REVISION COMMITTEE.
29. E.g., Official Secrets Act, 1920, 10 & 11 Geo. 5, c. 75, ? 6.
30. " (b) . . .police officers, otherwise than by arrest, cannot compel any person
against his will to come to or remain in any police station . . . ." Judges' Rules,
Principle (b).
31. Judges' Rules, Principle (c).

This content downloaded from

65.0.59.216 on Mon, 12 Sep 2022 06:15:20 UTC
All use subject to https://about.jstor.org/terms
 88 COLUMBIA LAW REVIEW [Vol.66:79

It is perhaps academically interesting that the right to consult a solicitor

should merely be mentioned in tlhe introduction to non-statutory rules in
England, while, in the United States, it is enshrined in the sixth amendment
to the Constitution. It may even be of practical importance that the Rules
themselves do not require a police officer expressly to inform a suspect of
this right, although there is an administrative direction to this effect so far
as persons in custody are concerned.32 I am unaware of any English case in
which failure to inform a suspect of his right to consult a solicitor has been
made a ground for the exclusion of a statement made by him.33
The police are entitled under Rule I to question any person, whether
suspected or not, in an effort to determine the circumstances of an offense.34
But once a police officer who is making enquiries of a person about an o-ffense
has enough evidence to prefer a charge, principle (d) requires him to cause
the suspect to be charged without delay.35 After the charge has been made,
Rule III limits further enquiry to exceptional circumstances.36 WVhen a
person is arrested without warrant, there is a common-law duty to inform
him of the ground of the arrest, that is, of the offense of which he is sus-
pected ;37 but the giving of this information does not constitute a "charge"

32. See Admlinistrative Direction No. 7, [1964] 1 All E.R. 239 n.3.
33. Cf. Escobedo v. Illinois, 378 U.S. 478 (1964), where, however, counsel was
requested.
34. When a police officer is trying to discover whether, or by whom, an offence
has been committed he is entitled to question any person, whether suspected or
not, from whorm he thinks that useful information may be obtained. This is so
whether or not the person in question has been taken into custody so long as he
has not been charged with the offence or informed that he may be prosecuted for
it. Judges' Rules. Rule I.
35. "(d) . . . when a police officer who is making inquiries of any person about
an offence has enough evidence to prefer a charge against that person for the offence, he
should without delay cause that person to be charged or informed that he may be
prosecuted for the offence ...." Jfudges' Rules, Principle (d).
36. 3. (a) Where a person is charged with or informed that he may be prose-
cuted for an offence he shall be cautioned in the following terms:
"Do you wish to say anything? You are not obliged to say anything
unless you wish to do so but whatever yod say will be taken down
in writing and may be given in evidence."
(b) It is only in exceptional cases that questions relating to the offence
should be put to the accused person after he has been charged or informed that
he may be prosecuted. Such questions may be put where they are necessary for
the purpose of preventing or minimising harm or loss to some other person or
to the public or for clearing up an ambiguity in a previous answer or statement.
Before any such questions are put the accused should be cautioned in these
terms:
"I wish to put some questions to you about the offence with which you
have been charged (or about the offence for which you may be prose-
cuted). You are not obliged to answer any of these questions, but if you
do the questions and answers will be taken down in writing and may be
given in evidelnce."
Any questions put and answers given relating to the offence must be con-
temporaneously recorded in full and the record signed by that person or if he
refuses by the interrogating officer.
(c) When such a person is being questioned, or elects to make a state-
ment, a record shall be kept of the time and place at which any questioning or
statement began and ended and of the persons present. Judges' Rules, Rule III.
37. Christie v. Leachinsky, [1947] A.C. 573.

This content downloaded from

65.0.59.216 on Mon, 12 Sep 2022 06:15:20 UTC
All use subject to https://about.jstor.org/terms
 1966] THE DITCHLEY PAPERS 89

within the meaning of Rules I and III. Accordingly, if a person is arrested

on suspicion of an offense, it is proper to continue to question him up to the
moment when he is charged in the police station in accordance with a pro-
cedure mentioned in the Appendix to the Rules.38 The question whether or
not the suspect should be cautioned that he is not obligated to say anything
in accordance with Rule II39 will, presumably, depend upon the particular
facts. Generally speaking, a police officer arresting on suspicion will have
evidence affording reasonable grounds for suspecting that the person ar-
rested had committed the offense of which he is suspected; but this may not
always be so. A person arrested on suspicion of, or charged with, one offense
may properly be questioned about another offense until he is charged with
that offense.40 The question whether he should be cautioned in such a case
under Rule II would again depend on the facts.
The merits of an obligatory caution as soon as the police officer has
evidence which would afford reasonable grounds of suspicion (Rule II) and
of a further obligatory caution at the stage of the charge (Rule III) are
naturally less obvious to policemen than to others. Some such obligation is
a necessary corollary to the privilege against self-incrimination once that
expression is understood to extend beyond the right to refuse to answer
questions in the witness box. It is also, in part, the outcome of the accused's
privilege not to be obliged to give evidence. Some of the English cases are
expressly based on the judge's objection to the police asking questions after
charge which no judge or barrister could ask unless the accused invited the
question by going into the witness box.4'

B. Fingerprints

A person is not obliged to allow his fingerprints to be taken in the

absence of a court order; but there is no need for the police to caution a
suspect before askinlg him whether he would let them take his fingerprints.42

38. R. v. Collier, [1965] 3 All E.R. 136 (Ct. Crim. App.); R. v. Brackenbury,
[1965] 1 All E.R. 960 (Liverpool Winter Assiz.). See Administrative Direction No. 7,
[1964] 1 All E.R. 239 n.3.
39. 2. As soon as a police officer has evidence which would afford reasonable
grounds for suspecting that a person has committed an offence, he shall caution
that person or cause him to be cautioned before putting to him any questions,
or further questions, relating to that offence.
The caution shall be in the following terms:
"You are not obliged to say anything unless you wish to do so but what
you say may be put into writing and given in evidence."
When after being cautioned a person is being questioned, or elects to make a
statement, a record shall be kept of the time and place at which any such ques-
tioning or statement began and ended and of the persons present. Judges' Rules,
Rule II.
40. R. v. Buchan, [1964] 1 All E.R. 502 (Ct. Crim. App.).
41. E.g., Rex v. Knight, 20 Cox Crim. Cas. 711 (S.E. Cir. 1905).
42. Callis v. Gunn, [1964] 1 Q.B. 495 (1963). The sharp distinction recognized in
this case between the question of the admissibility of confessions (largely a matter of
law) and the question of improperly obtained factual evidence (entirely a matter of

This content downloaded from

65.0.59.216 on Mon, 12 Sep 2022 06:15:20 UTC
All use subject to https://about.jstor.org/terms
 90 COLUMBIA LAW REVIEW [Vol. 66:79

The general judicial discretion which allows improperly obtained evidence

to be excluded would be brought into play if force, bribery, a trick or other
misrepresentation were used to obtain fingerprints from the accused.

C. Electronics

Evidence obtained by the use of electronic devices is likewise subject

to this general judicial discretion. It is certainly not inadmissible as a matter
of law. "The criminal does not act according to Queensbury Rules. The
method of the informer and of the eavesdropper is commonly used in the
detection of crime. The only difference here was that a mechanical device was
the eavesdropper. If, in such circumstances and at such a point in the
investigations, the appellants by incautious talk provide evidence against
themselves, then in the view of this Court it would not be unfair to use it
against them. The method of taking a recording cannot affect admissibility
as a matter of law, although it must remain very much a matter for the
discretion of the judge."43 These words were used by Marshall, J., in de-
livering the judgment in the Court of Criminal Appeal affirming the con-
viction of murder; the two Pakistani defendants had voluntarily gone to the
police and were thereafter left in a room in the Bradford Town Hall in
which a tape-recording appliance had been set up. They incriminated them-
selves in a conversation which was duly recorded and the Court held that
the evidence had been properly admitted, the judge having directed the jury
most carefully about the need for caution with regard to such things as the
translation of the record.

D. Wire-tapping

Similarly, although there is no authority on the point, the admissibility

of an improperly "tapped" telephone conversation would, in England, most
likely be a matter for judicial discretion. The entire question of the inter-
ception of communications was made the subject of a report by a committee
of privy councillors in 1957.44 This report cast no doubt on the power of the
Home Secretary to issue warrants authorizing the interception of letters
and telephone conversations, but it stressed the rarity with which the power
is, and should be, exercised. Similarly, the majority of the committee cast no
doubt on the admissibility in a criminal prosecution of a lawfully "tapped"
conversation. The subject of unlawfully "tapped" communication was not
considered in the report beyond the suggestion that consideration might be
given to making unlawful tapping an offense. The following extract from the

dis-retion) may be thought hard to justify. It appears to have been repudiated by the
U.S. Supreme Court in Mapp v. Ohio, 367 U.S. 643, 656-57 (1961).
43. Maqsud Ali, [1965] 2 All E.R. 464, 469 (Ct. Crim. App.).
44. Committee of Privy Councillors, Interception of Comnmunications, CMD. No. 283
(1957).

This content downloaded from

65.0.59.216 on Mon, 12 Sep 2022 06:15:20 UTC
All use subject to https://about.jstor.org/terms
 1966] THE DITCHLEY PAPERS 91

minority recommendation of Mr. Gordon Walker concerned even lawful wire-

tapping: "I also propose that no material obtained by the interception of
communications should be used by the Crown as evidence in any Court of
Law or in any inquiry in the public service. This seems to me to accord
with public feeling about the use of evidence that is necessarily obtained by
furtive means and normally consists only of selected extracts from the com-
munications that have been intercepted."45

E. The Indian Evidence Act

Another subject ripe for discussion is the merit of the following pro-
visions of the Indian Evidence Act which apply in India and have been
adopted in some other parts of the Commonwealth. They cover matters dis-
cussed under heads I and II of this paper-confessions and admissibility of
facts discovered in consequence of inadmissible confessions-as well as those
discussed under the present head.

Section 25: No confession made to a police-officer shall be proved

as against a person accused of any offence.
Section 26: No confession made by any person whilst he is in the
custody of a police-officer, unless it be made in the
immediate presence of a Magistrate, shall be proved
as against such person.
Section 27: Provided that, when any fact is deposed to as dis-
covered in consequence of information received from a
person accused of any offence, in the custody of a
police-officer, so much of such information, whether
it amounts to a confession or not, as relates distinctly
to the fact thereby discovered, may be proved.
Section 30: When more persons than one are being tried jointly
for the same offence, and a confession made by one
of such persons affecting himself and some other of
such persons is proved, the Court may take into con-
sideration such confession as against such other person
as well as against the person who makes such con-
fession.46

IV. THE ACCUSED IN CUSTODY: PREPARATION OF THE DEFENSE

A. Legal Aid

If an accused in custody has insufficient means, he can generally pro-

cure legal aid under the Poor Prisoners' Defence Act, 1930,47 as amended by

45. Id. at 40.

46. Indian Evidence Act, 1872, ?? 25-27, 30, IV India Code, pt. XI, pp. 25-26. The rule
against hearsay and its exceptions may be strictly outside the conference's terms of
reference. But the merits of the extension by Section 30 of the notion of declarations
against interest to declarations by living people tending to incriminate themselves may be
thought worthy of discussion. In Wong Sun v. United States, 371 U.S. 471 (1963), a
statement made after arrest by one accused was held inadmissible as against the other, and
this of course represents contemporary English law in a criminal case.
47. 20 & 21 Geo. 5, c. 32.

This content downloaded from

65.0.59.216 on Mon, 12 Sep 2022 06:15:20 UTC
All use subject to https://about.jstor.org/terms
92 COLUMBIA LAW REVIEWD [Vol. 66:79

the Legal Aid and Advice Act, 1949,48 and a number of regulations made
thereunder.49 A legal aid certificate can be obtained by letter to the Magistrates'
Court before the committal proceedings or, when the accused appears before the
Magistrates' Court, he may be granted a defense certificate. Legal aid is much
more frequently granted nowadays than was formerly the case, but it is still,
to some extent, a matter for the discretion of the court. It would therefore not
be quite true to say that there is in England the absolute right to counsel in a
criminal case which was established in the case of indigent defendants in the
United States by Gideon v. Wainwright.50 However, it is doubtful whether
injustice frequently occurs since there is seldom a total absence of legal aid.
Of course, it would be idle to pretend that someone assigned a solicitor by the
State is in as good a position as an accused person who is able to choose his
own legal advisers no matter what the price may be.

B. Interviews

The fact of confinement is at least as important an impediment to the

preparation of the defense of the contemporary English accused as is the
absence of means. Under the 1964 Prison Rules,51 a prisoner awaiting trial is
entitled to visits, in the sight and hearing of a prison officer, by any person
in connection with his defense. He must also be provided with writing ma-
terials and he may deliver or send communications to his legal advisers
which must not be read by the authorities unless the governor has reason to
believe that they contain other matter. Prisoners are notified of these facilities
as well as of the possibility of applying for legal aid, but it is unnecessary to
labor the point that it is more difficult to prepare one's defense inside than
outside prison. One solution of the difficulty would be the establishment of
some kind of public defender whose assistants could interview persons out of
hearing of the prison officers and who would not be preoccupied with such
other matters as occasionally prevent an ordinary solicitor from devoting the
requisite amount of time to the somewhat lengthy task of interviewing his
client in prison often at a considerable distance from his office, and making
the contacts with witnesses which would be made by the prisoner himself were
he available.
V. PRE-TRIAL PUBLICITY

The magistrates have power to hear the whole or part of committal pro-
ceedings in camera ;52 but this power is exercised comparatively rarely. A
committee under the direction of Lord Tucker prepared a report in 1958
favoring the continuance of the present practice under which committal pro-

48. 12 & 13 Geo. 6, c. 51, as amended by Legal Aid Act, 1960, 8 & 9 Eliz. 2, c. 28.
49. See STAT. INSTR., 1962, No. 148.
50. 372 U.S. 335 (1963).
51. STAT. INSTR., 1964, No. 388.
52. See Magistrates' Courts Act. 1952, 15 & 16 Geo. 6 & 1 Eliz. 2, c. 55, ? 4(2).

This content downloaded from

65.0.59.216 on Mon, 12 Sep 2022 06:15:20 UTC
All use subject to https://about.jstor.org/terms
 1966] THE DITCHLEY PAPERS 93

ceedings are generally heard in open court.53 The committee was, however, in
favor of a very considerable restriction on press reports of committal pro-
ceedings. It recommended that, whereas committal proceedings resulting in
a discharge could be reported forthwith, those resulting in a committal should
never be fully reported until the trial is over. All that may be published at the
time would be the name of the accused, the fact of committal, and other formal
matters. No account of the evidence should be allowed.
It has recently been said that this report would be acted upon by the
legislature. Some, however, prefer the provisions of the Northern Ireland
Summary Jurisdiction Act of 1953,54 providing an absolute ban on the publi-
cation of the opening address of the prosecution at committal proceedings,
but only a discretionary ban, to be imposed at the request of the defense, on
the publication of evidence objected to by the defense, or of matter likely to
prejudice the trial of the accused. The pros and cons of the two possibilities
seem to be fairly evenly balanced. Although there is no evidence on the point,
one cannot help feeling that the publication of press reports of the evidence
given at committal proceedings may prejudice the trial of the accused. This
was no doubt in the mind of Mr. Justice Devlin when, at the trial in 1957
of Dr. Bodkin Adams on the charge of murdering one of his patients by the
administration of excessive drugs, he expressed regret at the fact that the
committal proceedings were not held in camnera. On the other hand, press
reports of committal proceedings may occasionally be for the public good
because they allay suspicions and this will also be beneficial to the accused.
For example, before the circulation of press reports concerning the committal
proceedings in 1963 of Dr. Stephen Ward on charges of living on immoral
earnings, all sorts of rumors were rife, for example, that Ward was spying
for the Russians or running a brothel on behalf of the government.

53. Departmental Committee, Proceedings before Examiining Justices, CMD. No.

479 (1958).
54. Summary Jurisdiction Act (Northern Ireland), 1953, 1 & 2 Eliz. 2, c. 3, ? 42.

This content downloaded from

65.0.59.216 on Mon, 12 Sep 2022 06:15:20 UTC
All use subject to https://about.jstor.org/terms