ABSTRACT
Confessions are out of court statements adduced to prove the truth of their contents; thus they are hearsay. They are prima facie admissible, however, as an exception to the hearsay rule under s 76(1) of the Police and Criminal Evidence Act 1984 (PACE) and by the preservation of common law exceptions in s 118(5) of the Criminal Justice Act 2003. The hearsay exception is based on the notion of such a statement being adverse to the maker, which is viewed as demonstrating a degree of reliability. Although clearly it is recognised that considerations of fairness or reliability may make it undesirable to admit evidence of a particular confession. In addition to s 76 of PACE, which deals specifically with the admissibility and exclusion of confessions, the general discretion to exclude prosecution evidence in s 78 PACE also applies to confession evidence adduced by the prosecution. To try to secure reliability and fairness, Codes of Practice have been created under ss 60(1)(a) and 66 of PACE. The Codes attempt to control the ways in which certain types of evidence are obtained and breaches may lead to exclusion of an item of evidence under s 76 or s 78. The sections are often relied on in the alternative; in R v Mason [1988], it was held that s 78 applies to confessions as much as to any other kind of prosecution evidence.
