Abstract
This article considers the law of confessions in England and the United States of America Supreme Court's Fourteenth amendment cases, with a focus on suspects who are vulnerable. The question that is asked in the piece of work is whether the English statutory provisions and the decisions of the US Supreme Court provide sufficient protection to vulnerable suspects who falsely confess to crimes. A novel approach is adopted with this comparative analysis as it extends the knowledge base by examining vulnerability and the law of confessions within two jurisdictional parameters. A further contribution to knowledge can be seen as the paper provides a bespoke piece of legislation that affords protection to such individuals, and thereby adds to the current debate on vulnerability in the criminal justice system. Firstly, the work critically examine why vulnerable suspects will falsely confess to criminal acts. It will be established that vulnerable suspects may confess even if they have not been coerced, and this will be the foundational basis for the suggested reform: a vulnerable suspects confession should be excluded as a result of their characteristics or that such individuals should be provided with mandatory legal advice. The focus will then turn to the extant position in England, where it will be revealed that confessions will be excluded if they have been obtained by unfair practices or through inhumane or degrading treatment. It will also be recognised that the English jurisdiction affords limited protection to vulnerable suspects even though they are entitled to legal advice and an appropriate adult being present. The US Supreme Court's position will then be evaluated by chronologically critiquing the use of the due process clause in cases of confessions. It will be identified that the vulnerability of the individual can be considered in determining whether a confession should be excluded but cannot be utilised in isolation of other factors. The two jurisdictions will then be critically compared and the positive and negative aspects of the law in the jurisdictions will be evaluated. It will be established that neither England nor the US Supreme provides sufficient protection to vulnerable suspects and the law requires further refinement, by placing priority on mandatory legal advice and/or an opportunity to exclude the confession. A de novo remedial statutory provision for England is provided as an effective solution to the issue of vulnerability and false confessions.
Introduction
The treatment of vulnerable witnesses and suspects in the criminal justice system is a contemporary issue with several disciplines providing research in this area. The purpose of this article is to build upon this discourse by assessing the vulnerability of suspects and the law of confessions via a comparative jurisdictional analysis, and further contributes to the academic debate in this arena. It is well recognised that vulnerable suspects are more likely to confess when they are detained by the police for questioning, and that this can ultimately lead to a false confession. At this moment in time there has been no comparative jurisdictional analysis that has focused upon the English position and the fourteenth amendment, and the reasons why a vulnerable suspect may confess to a crime that they have not committed. This work will assess the current position from a number of perspectives and consists of four parts. The first part of the paper will evaluate two factors that can impact upon the decision-making process of a vulnerable suspect. These being situational factors (external factors) and personal risk factors (internal factors). It will be identified that both factors or either factor can lead to a vulnerable suspect confessing to a crime that they have not committed. The discourse in this section will be the foundation for proposing that internal factors should be considered in isolation. The second part of the paper will assess the current statutory framework on the law of confessions in England. It will be identified that English statutory framework has mechanisms in place to exclude confessions that assess admissibility via external factors, external factors and internal factors, but there is no expressly stated provision that excludes a confession through internal factors. The focus in the third part of the work then moves to the decisions of the Supreme Court of the USA and their interpretation of the fourteenth amendment. The rationale to restrict the comparative study to the fourteenth amendment is that the fourteenth amendment performs the same function as the English law and this is a sound basis for a comparative analysis. 1 It will be recognised that the US Supreme Court's position is similar to English law as the fourteenth amendment excludes confession that have been made through external factors, and external factors and internal factors, but the court will not exclude confession that only relate to the internal factors. The final part of the study compares the two jurisdictions and identifies the similarities and differences, and that both countries fail to consider the vulnerability of a suspect in isolation. In the conclusion to the paper it is proposed that the way forward in English law is to insert a statutory provision, and the United States Supreme Court ought to recognise fundamental fairness so that internal factors can be considered in isolation. The English remedial statutory provision is set out in the conclusion and stipulates that in indictable cases the court must exclude a confession if the defendant is vulnerable and requests that the inculpatory statement be excluded. We will begin by assessing vulnerable suspects and false confessions.
Vulnerable Suspects and False Confessions
It has been proposed that vulnerable suspects disproportionately confess to crimes that they have not committed. 2 There are a range of themes/schools of thought as to why this type of suspect will falsely confess, but the current discourse is not a treatise of all the factors that may cause a vulnerable suspect to make an inculpatory statement. The extant discussion focuses upon two elements: personal risk factors (internal factors) and situational factors (external factors). 3 These factors provide the foundation for the proposal that vulnerable suspects should be given the opportunity to retract a confession when the allegation is of a serious offence. An alternative is also suggested whereby a vulnerable suspect is provided with mandatory legal representation to assist them when they are in custody. Thus, this is not an attempt to provide a thorough examination of why vulnerable suspects falsely confess, rather it is utilised as the foundation to assist in proposing a solution to what seems to be a recurrent concern within criminal justice systems throughout the world.
There are a number of difficulties that a vulnerable suspect will encounter during the investigative process, and the ramifications of these obstacles can significantly impact upon that individual's decision-making process. Gudjonsson suggests that it is the suspects ‘perceptions and beliefs’ during the investigation that ultimately impact upon the decision-making process. 4 Wakefield and Underwager propose that it is the ‘interplay between mental state, intelligence, personality and environment’ that will cause a false confession. 5 It seems that it may be more than one factor that can impact upon a vulnerable suspect, but one factor may pre-dominate the vulnerable suspect's decision-making process. The factors that can impact upon a vulnerable suspect can be compartmentalised into internal and external factors and these have been identified as personal risk factors and situational factors. 6 Gudjonsson submits that these play a significant role in the making of a false confession and can determine how a vulnerable suspect will react when in custody. 7 Personal risk factors and situational factors will now be considered.
Personal Risk Factors That Impact Upon the Decision-Making Process
According to Gudjonsson and Kassin personal risk factors increase the likelihood of a vulnerable suspect falsely confessing, and include personal characteristics. 8 The personal characteristics of a vulnerable suspect may signify that they are more susceptible to providing a false confession as they may be the type of individual that can display personality traits whereby compliance is a dominant feature in social situations. 9 It is further recognised that a vulnerable suspect is more likely to acquiesce to a person who is in a position of authority, and numerous studies have identified that this type of suspect will invariably agree to any suggestibility whether or not they are coerced. 10 This eagerness to please can include vulnerable suspects with recognised disabilities, for example, an individual on the autism spectrum is more likely to comply with a person in a position of authority, and may falsely confess. 11
This type of vulnerable suspect may possess poor decision making abilities, and can include an inability to withstand anxiety and pressure. 12 Individuals with learning disabilities are also more likely to provide a false confession as a result of a lack of understanding regarding their rights and can display heightened suggestibility, particularly as they are unlikely to foresee the consequences of their actions. 13 The lack of foreseeability impacts upon the decision making process and ultimately a vulnerable suspect will make a decision that they believe is most beneficial to them. 14 If such an individual is unaware of the consequences then it begs the question how can they be making an informed choice, as the decision making process can be said to emanate from a flawed understanding of perceived consequences. 15 Most of the suspects with these character traits are more likely to concede to interrogation and provide a confession. 16 It is not just a disability that can impact upon decision making as age can play a significant role in determining whether there will be compliance.
Age and Youth as Personal Risk Factors
Youths and children are more likely to possess the same deficiencies as individuals with certain disabilities, and this can also place them at a distinct disadvantage. 17 It has been stated that individuals of immature years are more likely to accede to interrogation pressure, and Gudjonsson and Kassin consider this group ‘highly vulnerable’ within the false confession sphere. 18 There appears to be a correlation between the youth's age and compliant behaviour, as studies stipulate that the older the youth the less likely they are to make inculpatory statements. 19 Feld goes further and states that mid adolescents have the same ‘cognitive abilities as an adult’, but may not possess the maturity to make a rational decision like an adult. 20 Maturity or lack thereof seems to be a common theme in a youth's susceptibility to confessing, and if this is an accurate reflection then any youth may struggle to make an informed decision. Even with guidance from an appropriate adult or through legal assistance there may still be deficiencies in determining the viability of the confession. Furthermore, the older the defendant the more likely they are to understand the circumstances. 21 This raises concerns as younger individuals are more likely to lack an understanding as to legal assistance, and this can play a significant role in confessing. 22 The presence of an adult who is not involved in the investigation and is not a legal representative does not enhance a youth's understanding of their legal rights, and this can cause that person to confess, and to waiver their rights. 23 The concerns already identified are further exasperated when the youth is under stress conditions and being addressed by a person in authority. Research shows that the younger the youth the more likely they are to falsely confess when being interrogated. 24 It appears evident that personal risk factors play an important role in false confession, but the situational factors also have a detrimental impact upon vulnerable suspects, and these will now be examined.
The Impact of Situational Factors on Vulnerable Suspects
It is apparent that personal risk factors impair the decision making process of a vulnerable suspect, and the position can be further exacerbated by what Gudjonsson defines as situational factors. 25 Situational factors impact upon any suspect, but have a more detrimental impact when the suspect is vulnerable. 26 These factors have been identified as physical custody, isolation, confrontation, and implied promises. 27 All or each of the situational factors can have an impact upon the vulnerable suspect and they will now be evaluated in turn.
Custody and Isolation
Being in custody and isolation can increase a vulnerable suspect's levels of anxiety and despair, and prolonged detention can further heighten the levels of anxiety. 28 Hilgendorf and Irving expand upon the issue of being in custody by identifying components that can impact upon the vulnerable suspect's decision making process: the isolation, the surroundings and submission to authority. 29 It seems that isolation creates the anxiety and the longer the detention the further compounded the anxiety will become. These elements Gudjonsson propose increase the fear of losing control of the situation, and can create a feeling of uncertainty. 30 It is the cumulation of these factors combined with personal risk factors that indicate that a vulnerable suspect is more likely to confess, and because of these factors the confession may be unreliable or involuntarily given. It appears that such individuals ought to be afforded more protection as their internal composition, and the impact of the external environment can severely impact upon their decision-making process, even though there has been no malpractice or inducement by the police. This type of suspect may need additional support or the ability to exclude a confession, and other external factors such as confrontation may impact upon their decision-making process. Confrontation will now be evaluated.
Confrontation as a Concern
The process of confrontation is considered a situational factor that can coerce an individual into confessing, but this is not exclusive to vulnerable suspect's as it is recognised that ‘normal’ suspects may not be in an appropriate state of mind when being interviewed, and as a result could confess. 31 It is beyond the remit of this paper to consider such suspects, but a vulnerable suspect is more susceptible to a false confession. Wakefield and Udwager suggest that if an interviewer is considered an authoritative figure then a vulnerable suspect will adhere to their ‘instructions and suggestions’. 32 When conflated with a vulnerable suspect's personality traits a forceful interview can ensure that that individual will succumb to the interrogation process and is more likely to provide a false confession. 33 Ofshe and Leo recognise that even ‘average levels of stress built into an interrogation’ can cause a vulnerable suspect to provide a stress compliant confession. 34 This aligned with assertions of guilt can increase levels of despair, and the pace of the interview can influence a vulnerable suspect, and statistics reveal that a confession is more likely under these conditions. 35 All of above mentioned factors may not be considered intrusive but can still impact upon a vulnerable suspect. The evidence suggests that a vulnerable suspect is at a disadvantage during the interview process and should be afforded added protection to ensure that their rights are protected throughout the interview. Whilst an appropriate adult may assist a vulnerable suspect, and a trained legal adviser may ensure that legal rights are respected, these mechanisms may still be inadequate and other options may need to be explored.
The Interviewer Having a Detrimental Impact
Further situational factors have been identified that may influence a vulnerable suspect. These originate from the interviewer and Gudjonsson suggests that this takes place through confrontation. 36 Gudjonsson provides examples of when this has transpired, and that an interrogator can persuade a suspect to confess through suggestions of minimal involvement or through implied assertions. 37 The review by Gudjonsson confirmed that individuals were more likely to confess when it is suggested that they played a lesser role, or when there are implied assertions of leniency. 38 A further categorisation identified by Hok Lai Ho is when the interviewer manipulates the vulnerable suspect so that the vulnerable suspect feels that they have no alternative but to provide a false confession. 39 It appears that custody, confrontation or implied assertions can play a vital role in extracting a confession from a vulnerable suspect.
It seems that any confession from a vulnerable suspect ought to be excluded on the grounds that it may be false. This stance may cause difficulties to a criminal justice system, and may exclude important evidence from the fact finder, but it is morally repugnant to allow evidence when factors have impacted upon a vulnerable suspect's decision-making process. The understanding of vulnerability has evolved at a faster pace than the law on confessions and the protection of vulnerable suspects should be at the forefront of any reform in this area. Having evaluated the internal and external factors that may cause a confession it is now appropriate to consider the law of confessions within the jurisdictions that are part of this analysis by firstly assessing the English position.
The English Position on Confessions
English Law and the Admissibility of Confessions
In English law a confession will be admissible if it has been given voluntarily. That is it must be free from coercion or enticement, and this has been the position within this jurisdiction for centuries. 40 The term confession is defined in s82 of the Police and Criminal Evidence Act 1984 (PACE), and stipulates that a confession is a statement that is wholly or partly adverse to the maker. 41 The breadth of the definition captures all manners of inculpation, but the extant position in England is that a confession will be excluded if it has been obtained by improper means. 42 A confession may also be excluded if it would have an adverse effect on the fairness of the trail. 43 The pre-PACE case law suggested that a confession from an individual who is ‘mentally defective’ may be excluded for unreliability, 44 but such provisions were not implemented within the statutory framework. PACE sets out three circumstances whereby a confession may be inadmissible. 45 Vulnerable suspects may be dealt with under any of these categorisations, but the primary focus of this discourse is s76 (2)(a) and (b), as these sub-sections require the court to exclude confessions that had been obtained inappropriately. The provisions that are set out in s76 of the PACE, will now be evaluated by firstly assessing oppression.
Oppression: Inappropriate Behaviour by the Police
A confession that has been obtained through oppression will be excluded unless the prosecution can establish that it was not obtained by such means.
46
In Fulling it was held that oppression was to be given its ordinary meaning. The defendant in Fulling was convicted of obtaining property by deception as she made an insurance claim regarding a burglary at her flat. Fulling was arrested and during a break in the interview stipulated that the interviewing detective stated that the girl in the cell next door, who had been arrested in the same investigation as Fulling, had been having an affair with Fulling's partner. This revelation Fulling stated caused her to become distressed and that she ‘just couldn’t stand being in the cells any longer’ and provided the police with a confession. Fulling argued that this amounted to oppression, but the Court dismissed the appeal, and held that oppression means the ‘exercise of authority or power in a burdensome, harsh, or wrongful manner, unjust or cruel treatment of subjects or inferiors, or the imposition of unreasonable or unjust burdens’.
47
It was further stipulated by the court that there must be impropriety for there to be oppression, and
48
it must exceed the oppressive nature of the police interview.
49
This extends the meaning of oppression beyond the statutory definition that is found in s76(8) of PACE, and Knapman suggests that this allots oppression to the ‘disciplinary’ part of exclusion.
50
The disciplinary principle penalises inappropriate conduct by the police, and provides a safeguard for future cases.
51
Having such an approach to exclusion seeks to ensure that a police officer will behave in an appropriate manner so that evidence will not be excluded at trial, and is a forward thinking principle.
52
If oppression is defined in a disciplinary manner then there is no consideration of a vulnerable suspect, as the focus is penalising inappropriate police conduct. The appellants counsel in Fulling sought to extend the parameters of oppression so that it did not necessitate impropriety by identifying previous court definitions of oppression.
53
A suggestion of this type may have extended protection to incorporate the internal factors, but this was not how Fulling was decided, and impropriety was held to be an essential ingredient for there to be oppression. There is no consideration of a vulnerable suspect as impropriety is the crux of oppression. Lord Lane stated that: ‘We find it hard to envisage any circumstances in which such oppression would not entail some impropriety on the part of the interrogator. We do not think that the judge was wrong in using that test. What, however, is abundantly clear is that a confession may be invalidated under section 76(2)(b) where there is no suspicion of impropriety’.
54
The dictum above specifies that there may be circumstances whereby the individual cognitive capabilities may be taken into consideration, but the passage from Lord Lane is explicit in stipulating that impropriety is an essential ingredient in case of oppression. If there is no impropriety an application to exclude a confession will fail, and this is the common consensus amongst commentors regarding the judgment. 55 It does not denote that the characteristics of the suspect cannot be considered, as what may be oppressive can vary depending upon the type of suspect. For example, in Heibner the Court of Appeal suggest that oppression can be suspect specific. 56 In that case the Court of Appeal recognised that Heibner was well versed in the criminal justice system, and proposed that such an individual would be able to withstand certain questioning techniques and detention. 57 Such an assertion is in contrast to a vulnerable suspect, but Heibner implies that vulnerability can be considered.
The vulnerability of the suspect was examined in the case of Paris 58 where a defendant with an IQ of 75 was aggressively questioned for several hours. The suspect was externally coerced, and the suspect's intellectual deficiencies signified that a confession was inevitable. 59 Studies demonstrate that there are more false confessions when there is some type of confrontation with a vulnerable suspect. 60 In that case there was some distinction drawn between a vulnerable suspect and normal suspects, as the court recognised that an individual of normal intelligence would have found the interview techniques oppressive, but that distinction is never fully explored. 61 One of the most concerning elements of the Paris case is that the solicitor was present at interview. It is recognised that police interview techniques have evolved since Paris, but it signifies that there may be occasions where appropriate adult and/or legal representation attendance may be insufficient. 62 It seems evident that the oppression provision does not protect a vulnerable suspect and is enacted to ensure that the police behave in an appropriate manner. The next section of PACE that is going to be examined adopts a different approach to the exclusion of confession evidence and can take into consideration the vulnerability of a suspect.
Anything Said or Done in the Circumstances Existing at the Time
s76 of PACE provides a further mechanism whereby a confession can be excluded, and this incorporates the reliability principle within the statutory framework. 63 The reliability principle states that certain situations and circumstances may cause the confession to be ‘testimonial untrustworthy’. 64 The extent and scope of the reliability principle may vary, but elements of the principle are replicated within s76(2) (b). Under this provision the confession will be excluded if things said or done in the circumstances existing at the time cause the confession to be unreliable. It is evident that there is a two-step approach to establish whether a confession ought to be excluded, and the first stage in assessing the admissibility of a confession under this provision accords to an assessment of external factors. 65 These external factors may have an impact upon inculpatory statements by the suspect, but it is the second stage whereby internal factors can be evaluated. The second stage focuses upon the circumstances existing at the time and can encompass age, mental and personality abnormities. 66 This is an important consideration as Muirfield suggests that as the level of things said or done becomes lower then it is the characteristics of the suspect that become more relevant. 67 It seems that this is the rationale for the circumstances condition as a vulnerable suspect is more likely to confess even if the things said or done are considered to be insignificant in comparison to other suspects. An approach of this type does not denote that the suspects characteristics can be dealt with in isolation, but an assessment under the circumstances existing at the time aligns with the internal factors, and the mental impairments of the suspect can be a consideration. The two-stage evaluation of admissibility within the provision will now be examined by firstly critiquing things said or done followed by an evaluation of circumstances existing at the time.
External Factors: Things Said or Done
The defining parameters of things said or done are not expanded upon within the statute, but the case law has provided guidance of what can constitute things said or done and has been widely interpreted. 68 The courts have also been explicit in restricting the ambit of things said or done as they must emanate from something external to the suspect. 69 For example, in Goldenberg the suspect was a heroin addict and requested a police interview in which he made a confession. 70 The appellant sought to exclude the evidence by stipulating that he only requested the interview to obtain bail or gain credit for assisting the police. 71 The court rejected the submissions and stated that the term ‘in consequence’ within the provision denotes a causal link: in that things said or done cannot originate from the suspect. In contrast to the decision, it has been suggested that anything said or done could be extended to include individuals like Goldenberg, and that the statutory framework is flexible enough to accommodate developments that embrace internal factors. 72 A development of this calibre would reinforce the validity of the suggestions proposed within this piece of work, but the current position of things said or done requires external factors.
It seems evident that things said or done exclude any consideration of a vulnerable suspect, but omissions are included, and a failure to provide an appropriate adult falls firmly within the ambit of this subsection.
73
The exclusion of an appropriate adult in interview has been considered to be a ‘clear breach of the code’, and indicates that any confession when such an individual is absent will be excluded.
74
It appears imperative that an appropriate adult is in attendance, otherwise the absence of one will invalidate any confession and the evidence may be excluded.
75
,
76
Unfortunately, this is not how the law has developed as Newman J in Gill (Kaur) emphasised that an absent appropriate adult does not automatically exclude a confession as each case should be dealt with on its own facts.
77
In determining whether to exclude a confession, Newman J states that: ‘it does not follow that the absence of an appropriate adult, in circumstances where one should have been present, will automatically give rise to the exclusion of a confession’.
78
It appears that emphasis is placed upon how the absence of an appropriate adult may affect the vulnerable suspect's behaviour, and whether this may cause the confession to be unreliable. This formulated test for things said or done can be seen to be prejudicial as it can allow officers the opportunity to restrict access to an appropriate adult if they believe that the absence of an appropriate adult would have little to no impact. As Kerrigan states it is difficult to envisage how an appropriate adult would not have an impact upon the actions of an individual who is recognised as a vulnerable suspect. 79 It seems that such a breach of PACE code C will always be detrimental to a vulnerable suspect, and from an historical perspective the rationale for allowing an appropriate adult to attend interview is to protect the vulnerable. 80 If this is not the case, then what is the rationale for the mandatory requirement of an appropriate adult? The appropriate adult is seen as a protective shield that will defend a vulnerable suspect's rights, and Kerrigan identifies that this shield affords direct and indirect protection in that they provide assistance (direct) and access to further safeguards (indirect). 81
There is no doubt that the role of the appropriate adult is virtuous but there is concern with their effectiveness, as research identifies that an appropriate adult may remain passive throughout a police interview or may lack the experience to support a vulnerable suspect, 82 but this cannot justify excluding an appropriate adult from interview. There are other concerns with the use of an appropriate adult as their presence can have detrimental impact upon the vulnerable suspect and legal professional privilege does not apply. 83 Excluding a confession as a result of the absence of an appropriate adult on all occasions would extend the parameters of exclusion to accord with the disciplinary principle, and remove the inconsistency that have been set out within judgments. 84 This would ensure that police did not allow a vulnerable suspect to be interviewed in the absence of an appropriate adult. It is rather perplexing that denial of legal advice is regarded as ‘significant and substantial’ and will invariably lead to exclusion, 85 but the same principles do not apply regarding access to an appropriate adult even when it is a mandatory requirement. It is recognised that legal advice is a fundamental right that is provided to a suspect, but why is this not mandatory rather than an option for a vulnerable suspect? Perhaps the answer to this question lies in the economic impact upon of implementing such measures. 86 The alternative approach suggested throughout this paper can overcome the economic obstacle as it is suggested that a vulnerable suspect should be given an opportunity to exclude a confession in serious cases. The things said or done identify external circumstances and the character traits of the vulnerable suspect will not be considered, but assesses omissions and these could be relevant to the vulnerable suspect's position. It is the second part of this provision that affords further protection by evaluating the characteristics of the vulnerable suspect.
Internal Factors: In the Circumstances Existing at the Time
As with things said or done, the circumstances existing at the time has no statutory definition and it has been left to the judiciary to determine the extent of the term. From the case law it is evident that the second limb to exclusion within the provision can include suspects who are considered vulnerable and offers protection to those with a mental impairment. The courts have developed the test to be applied when evaluating the circumstances existing at the time and the mental condition of the suspect. In Everett, LJ Watkins stated that the test for determining the circumstances existing at the time is objective, in that it is the suspects’ mental condition at the time of the interview and not what the interviewer perceives it to be. 87 This appears to be the correct approach as the suspect's cognitive capabilities at the time of interview are what is relevant and may be derived from expert evidence. 88 This then begs the question what is a mental impairment and PACE provides a definition of mental impairment that can cover all types of mental condition. 89 It seems that the legislator deliberately defined this to include many forms of impairment, which is viewed as a positive aspect and a welcome inclusion. As the type of mental impairment is not restrictive it can include any type of mental condition when assessing the causal link between things said or done and the vulnerable suspect. 90 A further definition of mental impairment that is relevant to the current discourse can be found in PACE Code C, and this makes reference to MHA Code. 91 The definition that can be found within MHA Codes of Practice defines mental disorder as ‘any disorder or disability of the mind’, and also provides an non-exhaustive list of what can be considered mental impairment. 92 It is evident that different terminology is utilised in these definitions, but each of these are set in broad terms so as not to restrict the identification of a mental condition.
Mental Incapacity and Circumstances Existing
It seems that any mental condition may be considered, and case law has aligned to the statute, but has also been restrictive. In Raghip and others the court approved the s77 definition of mental impairment, and in Walker LJ Potter identified that any ‘mental or personality abnormalities’ could be relevant. 93 Further cases adopted this wide approach as LJ Roch in O’Brien states that ‘the real criterion must simply be whether the abnormal disorder might render the confession or evidence unreliable’. 94 This, submits Rees demonstrates that the law's attitude toward mental impairment has developed in a positive manner as it includes a broader spectrum of mental conditions. 95 These cases endorse the statutory definition, but it has also been stated that some mental impairments are not relevant in determining the reliability of a confession, and the judiciary may be disregarding the statutory definition of mentally impaired. 96 In Foster the court stated that a suspect was not mentally impaired even though the individual had mental age of 10, was highly suggestible and ‘on the borderline’ of having a mental condition. 97 Each element of that diagnosis would typify that Foster is the type of individual who would be prone to providing a false confession and serious consideration should have been afforded to their internal factors. 98 Contrastingly, in R v W factors similar to Foster's were considered relevant. 99 This is surely the correct approach, but in R v W it was things said or done that was the primary consideration in the guise of the absence of an appropriate adult.
There Must be a Causal Link Between Things Said or Done and Circumstances Existing at the Time
The above discourse does not remove the obstacles that are built into the statutory framework as the circumstances existing at the time is one stage in determining the admissibility of a confession within s76(2)(b). The legislative position does not go far enough when considering the vulnerability of a suspect as relevant internal factors are not considered in isolation. For a confession to be excluded, there must be causal link between the external factors (things said or done) for internal factors (the circumstances existing at the time) to be applicable. This is apparent within the wording of the statute as there is explicit reference to in consequence of things said or done. It is restrictive in nature as there may be occasions whereby an individual is vulnerable, and nothing has transpired under the things said or done stage of determination. Two further sections of PACE are also worthy of consideration, but neither provide full assistance to a vulnerable suspect.
s77 Guidance to the Jury
Section 77 of PACE provides explicit guidance when directing a jury about a confession from a mentally impaired individual and appears to be a modification of the protective principle. The protective principle states that where the suspect has not been provided with minimum standards then the suspect should not suffer any disadvantage. 100 It would be appropriate to exclude the evidence under the protective principle, but this is not a requirement within section 77. The provision can be seen as an attempt to strike a balance between the admissibility of the confession and the disadvantage caused to a vulnerable suspect. The provision may still have an impact as failure to provide a direction under section 77 can lead to a conviction being quashed. 101 Regardless of exculpation mechanisms that derive from the failure to provide a direction under section 77 it can still be seen as unfavourable. There should be a statutory framework whereby a vulnerable suspect can withdraw such a confession and section 77 does not achieve that aim. Thus, section 77 is employed when a confession has been admitted as evidence against a vulnerable suspect and provides a warning to the jury of a special need for caution. The section can only be utilised if the confession is identified as the primary evidence, the suspect is mentally impaired, and the confession was made in the absence of an independent person. 102 The independent person is not defined as an appropriate adult, but it is logical to assume that such an individual would be the independent person. Section 77 condones the absence of an appropriate adult, as it clearly states that the only time there is a need for caution is when an independent person is absent. It is the Court of Appeal in McKenzie that provides guidance about an unconvincing confession, and in that circumstance Lord Taylor CJ states that the case should be withdrawn from the jury. 103 The case set out three criteria that necessitate consideration, and they focus more upon the reliability of the evidence than the vulnerability of the suspect. 104 This can only be utilised in limited circumstances if that the case depends wholly on an unconvincing confession and the defendant has a significant mental impairment. It is evident that it is a narrow approach to a concern that requires reform, and more ominously this will not be applicable in cases where vulnerability is the only consideration. 105
s78 the Adverse Effect on the Fairness of the Trial
There are deficiencies with excluding a vulnerable suspect's confession under s76, and s77 does not facilitate exclusion, but the court has an opportunity to exclude a confession by exclusively assessing the circumstances existing at the time.
106
S78 of PACE can be a mechanism whereby the defendant's inability to withstand the interview and detention process may be deemed to affect the reliability of the evidence and can impact upon the fairness of the trial. A number of factors can impact upon whether a confession may be excluded under s78, and exclusion of a confession can be seen in cases where there has been no breach of PACE or the Codes.
107
An approach in this context has been considered to have ‘broader protective principles’ than section 76.
108
To a certain extent this is an accurate reflection of s78, but the provision does not require mandatory exclusion as a result of a suspect's vulnerability. The basis for exclusion under the provision is fairness and this is assessed by evaluating the fairness to both parties.
109
In Walsh
110
it was stated that when deciding whether to exclude evidence under s78: ‘The task of the court is not merely to consider whether there would be an adverse effect on the fairness of the proceedings, but such an adverse effect that justice requires the evidence to be excluded’.
The above discourse denotes that it is a high threshold to attain, and Lord Bingham also proposes that if the ‘statutory test’ in s78 is satisfied then the judge must exclude the evidence. 111 The provision is contradictory as it provides a powerful mechanism that extends beyond s76 but is weakened by the requirement of ‘such an adverse effect’. Although it is beyond the scope of this paper to provide extensive discourse of s78 it is worth noting that the provision does not provide an explicit mechanism to exclude confessions by vulnerable suspects.
The English Position on Confessions
It is evident that the English jurisdiction can provide support to vulnerable suspects through legalisation, case law and the PACE codes. Further support mechanism can also be seen in the mandatory requirement to provide vulnerable suspect with an appropriate adult who will support them throughout the duration of the custody, and the entitlement to legal advice. These support mechanisms appear to be deficient as some vulnerable suspects may still falsely confess to a crime. The ability to exclude a confession though oppression does not assist in protecting a vulnerable suspect, but obiter comments indicate that there may be circumstances when their characteristics may become relevant. s76(2)(b) does afford some level of protection to vulnerable suspects but the internal factors cannot be assessed in isolation. The discussion of s77 and s78 identified the deficiency of the provisions in that s77 only provides a warning and the latter does not explicitly protect a vulnerable suspect. It has also been identified that case law has provided a safeguard, but this protection is only available in limited circumstances. The cases from the United States Supreme court and the fourteenth amendment will now be critiqued, and it will be identified that there is insufficient protection for vulnerable suspects who confess.
The United States Supreme Court: The Fourteenth Amendment and Confessions
The United States of America has several mechanisms that can facilitate the exclusion of a confession, 112 and it has been recognised that the law in this area has a ‘long and convoluted history’. 113 This analysis is restricted in ambit in that it focuses upon confessions that may be excluded under the fourteenth amendment, as this can provide a true comparative functional analysis with the statutory provisions that are set out in England. 114 The fourteenth amendment stipulates that no state shall deprive any person of liberty without due process of the law, and it is expected that all states will adhere to the principles of liberty and justice. 115 A confession that has been extracted from an individual involuntarily has been seen to be an infringement of the fourteenth amendment. 116 Thus, the clause is recognised as a means to exclude confessions that are considered to have been extracted without due process of the law. The utilisation of the ‘due process’ clause as an effective mechanism to exclude confessions is not without its critics as the voluntariness requirement has been described as amorphous and dealt with on a case by case basis. 117 Such assertions appear to indicate that the due process clause can be difficult to utilise, and to overcome these criticisms the Supreme Court set out incremental guidance as to the circumstances that will lead to the exclusion of a confession.
The Supreme Court recognises that it is the totality of circumstances that necessitate consideration, and essential elements in evaluating totality are external factors particularly police conduct. Kassin states that the incremental steps that have developed through case law offer little protection to suspects, and this is evident in relation to vulnerable suspects. 118 The due process clause recognises that suspects should be treated fairly, but there is nothing to protect the vulnerable by assessing internal factors in isolation. It seemed that the Supreme Court's began to consider the importance of internal factors until the case of Arizona v Miranda, and Miranda has been recognised as the case that impeded the development of the voluntariness due process rule. 119 To be able to evaluate the extant position of the fourteenth amendment it is necessary to assess the chronological development of due process through a critique of the case law and determine its effectiveness in protecting vulnerable suspects beginning with the case of Brown v Mississippi. 120
The Utilisation of the Fourteenth Amendment: Physical and Psychological External Factors
The utilisation of the due process clause in its modern guise can be first seen in Brown v Mississippi where the Supreme Court incorporated the common law position that a confession must be given voluntarily into the constitutional guarantee of the fourteenth amendment. 121 In Brown it was held that a confession was involuntary if the defendant is physically coerced into making a confession and infringed upon the constitutional right of due process. 122 The defendants in Brown were subjected to brutality and violence by police officers, and these actions were stated to be ‘revolting to the sense of justice’. 123 The case was explicit in stating that only a voluntary confession would be admissible and adopted a ‘generalised due process standard’ 124 that specified that physical coercion would denote that a confession would be involuntary. It seemed evident that the Supreme Court would not tolerate abrasive police tactics to elicit a confession, 125 and corresponds to the disciplinary principle for excluding confessions. 126 There was no consideration of the vulnerability of the suspect, and the decision appeared to restrict exclusion to cases where there had been physical coercion. It has been suggested that the court believed that Brown was clearly innocent and the reliability of the confession was questionable even though the focus of the judgment was on the voluntariness of the confession. 127 Contrastingly, it has been stated that the reliability of the confession was not tested as the court failed to assess the state court's judgment, and that the confession may have been true. 128 Ultimately, it was identified that the confession was involuntary, and a positive outcome of the decision in Brown was that interrogators ceased using third degree techniques thereby reinforcing the disciplinary principle, but the decision moved investigators towards psychological techniques when questioning suspects. 129
The police methods of interrogation that could lead to the exclusion of a confession were extended to encompass psychological coercion following the Supreme Court decision of Chambers v Florida. 130 In Chambers the Court recognised that external factors including questioning over a 5-day period in an isolating environment were ‘calculated to break the strongest nerves and stoutest resistance’ and akin to physical violence. 131 Huigens states that the judgment recognises that due process extends the parameters of protection beyond coercion, and into the realm of protecting the vulnerable. 132 The opinion by Justice Black from which Huigens derives his assertion denotes that vulnerable suspects can be easy targets, and this in turn indicates that special protection should be afforded to such individuals. It is something that the courts further developed when the Supreme Court began to utilise the totality of the circumstances, but vulnerability in the context of internal factors was not and is not considered in isolation.
An Alternative Approach to the Fourteenth Amendment and Confessions: Fundamental Fairness
The decisions in Brown and Chambers recognised that police tactics could impact upon the decision-making process of suspects, but there was no real consideration of a suspect's inherent vulnerability. The Supreme Court In Lisenba v California 133 appeared to evaluate the validity of a confession from a totality of the circumstances perspective, and identified that the characteristics of the defendant were relevant in deciding the admissibility of a confession. 134 In distinguishing Chambers and moving away from illicit police practices it was stated that the purpose of the exclusion of a confession via the due process clause is ‘is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence whether true or false’. 135 It is unclear what are the parameters of fundamental fairness and the concept may be interpreted in several ways including that the fourteenth amendment should disregard the issues of reliability of a confession and vulnerability, and determine whether admissibility is fair in the circumstances of the case. 136 Alternatively, it could mean that fundamental fairness recognises that the characteristics of a suspect could be considered, and in such circumstances, it may be fundamentally unfair to allow a confession to be admissible when the suspect is vulnerable. The decision has been defined as ambiguous, and that it supports the reliability theory. 137 There may be ambiguity within the judgment, but it is evident that the court balanced the police tactics against the characteristics of the defendant by incorporating a totality of circumstances rationale. It is also evident that reliability was not the position of the court as fundamental fairness was the concern, and that the court condoned illicit practices by the police. 138 Other members of the court rejected this approach as it was felt that Lisenba had been coerced into the confession. 139 Despite the ambiguity in the judgment, it is apparent that the court was willing to accept that the characteristics of the suspect can be pivotal in deciding the admissibility of a confession.
The Affirmation of the Totality of Circumstances and Internal Factors
It was clear that the Supreme Court were willing to view the admissibility of confessions through a number of lenses, but it is the totality of circumstances test that emerged as the approach in these cases. The court began to recognise internal factors as an ingredient in determining the totality of circumstance, as issues relating to vulnerability were addressed by the Supreme Court in Haley v State of Ohio. 140 In that case the court acknowledged that the age of the suspect and lack of moral support played a significant part in the confession. Mr Justice Douglas stated that careful consideration must be taken when the suspect is a juvenile and that it is a crucial factor in determining the voluntary requirement. 141 The approach of Mr Justice Douglass identifies that the internal factors of a vulnerable suspect need to be reviewed. But it is restrictive as the defendants age was only one of several factors that were considered, and vulnerability based only on age or other internal factors were not considered as the only grounds for exclusion.
A case that appeared to accept that vulnerability as central to excluding confessions was Gallegos v Colorado. 142 In the judgment Mr Justice Douglas again recognised the vulnerability of a youth and provided a cogent rationale as to why such a suspect would be considered vulnerable. Mr Justice Douglas states that a child is too immature to be prepared for an encounter with the police, and only with appropriate adult support would they be able to make an informed decision. 143 The difficulty with the judgment is that Mr Justice Douglas did not identify that child immaturity can be the only factor and focused on the totality of the circumstances, thereby indicating that a suspect's characteristics cannot be considered in isolation. Caplan suggests that the approach in Gallegos was inappropriate as being unequal to the police does not denote that the confession is not given voluntarily. 144 What Caplan does not consider is that in these circumstances a vulnerable suspect may agree to any suggestions from the police during the interview. Psychological studies identify that youths are particularly vulnerable under conditions of detainment, and a confession may never be voluntary in such circumstances even if they have legal advice or an interested adult is present. 145 In contrast to Caplan's assertions King recognises that internal factors are critical in determining whether the confession is voluntary. 146 King's is the appropriate stance to adopt even when there are no external factors to consider.
It seemed the Supreme Court were beginning to accept the importance of internal factors as in Fikes v Alabama
147
consideration was given to the ‘low mentality’ of the petitioner. It was also stated that the cumulative effects of the detention and interrogation went beyond ‘allowable limits’.
148
These were factors that were taken into account when reviewing the totality of the circumstances, and consideration of the vulnerability of the suspect was yet again one of the factors. It was recognised that the suspect had numerous mental health issues as the Court stated that: ‘We hold that the circumstances of pressure applied against the power of the resistance of this petitioner, who cannot be deemed other than weak of will or mind, deprived him of due process of law’
149
Thus, the vulnerability of the suspect was reviewed, but not considered in isolation, and this is still the current legal position when determining the voluntariness of a confession. 150 Hancock suggests that the court relied upon a ‘dizzying amount of facts’ when reviewing the totality of circumstances. 151 The courts analysis of the cumulative effect of the police tactics and Fikes’ vulnerability were crucial in determining whether the confession was voluntary, and the test at that time necessitated consideration of all the relevant circumstances. The Court did not move the boundaries of the test, but it might have been an appropriate course to take if there had been no illicit police tactics.
The totality of circumstances test further evolved in Blackburn v Alabama
152
when the mental capacity of the defendant was central in ascertaining that the confession was involuntary. Chief Justice Warren stated that it would be an affront to justice to incarcerate an individual because of a confession that he made whilst ‘insane’.
153
The point is of utmost importance when assessing whether a vulnerable suspect can be said to provide a voluntary confession, and that is not to state that every vulnerable suspect will be mentally incapacitated, but some types of vulnerability denote that they may not be mentally competent to provide a voluntary confession.
154
The concern with Blackburn was that it was not decided by assessing the mental capacity of the suspect in isolation, but by the totality of the circumstances that included extensive questioning by a number of officers. The judgment would have benefited from explicit consideration of vulnerability as Chief Justice Warren dictum indicates that the case may have been decided differently if the other circumstances were not present: ‘Surely in the present stage of our civilization a most basic sense of justice is affronted by the spectacle of incarcerating a human being upon the basis of a statement he made while insane; and this judgment can without difficulty be articulated in terms of the unreliability of the confession, the lack of rational choice of the accused, or simply a strong conviction that our system of law enforcement should not operate so as to take advantage of a person in this fashion’.
155
The judgment in Blackburn seemed to cause confusion as some denote that it was decided by utilising the totality of circumstances test, whilst others considered that the police interview techniques were not relevant. 156 Benner suggests that Chief Justice Warren states that the only consideration was whether Blackburn had the capacity to confess. 157 If Benner's assertions are accurate then mental capacity would be the only consideration, and could assist in solving the conundrum of vulnerable suspects and false confessions. Unfortunately, this is not what was stated in Blackburn as the judgment evaluates admissibility from external and internal factors.
An assessment of a multitude of factors continued and continues to be the Supreme Court approach to deciding the admissibility of confessions via the fourteenth amendment. In Culombe v Connecticut, 158 a case that Penney defines as ambitious in explaining the approach to due process, 159 the suspect was illiterate, and illiteracy was a factor that was considered in determining whether the confession was voluntary. 160 Mr Justice Frankfurter identified a three-stage process to ascertain whether a confession is given voluntarily. 161 The second stage of the test paid particular attention to the psychological construct of a suspect. It recognised that the psychological state of the suspect was one of the factors in determining whether someone provided a voluntary confession. Mr Justice Frankfurter stated that this can never be established as a definite, as it was stipulated that this could only be determined by ‘inference’. Penny proposes that this is the appropriate position to take as ‘the concept of voluntariness grafts an externally-imposed legal construct onto an imagined psychological reality’. 162 It has also been suggested that without determining the legal purpose of voluntariness it is difficult to identify as it is only identified through a series of joining facts. 163 Neither of these proposals considers that the composition of the suspect can be determined by an expert, and in this context the inference can become more cogent. The issue with the dictum of Frankfurter is that it does not confirm that the psychological factor is central in identifying whether the defendant has provided a voluntary confession. It is recognised that that the decision is over 60 years old and psychology and scrutinisation of detention and interrogation has evolved. To decide that the psychological make up the suspect is one stage of a three-part test is in contrast to the current understanding of vulnerable suspects. The judgment could have been the foundation for acknowledging that the dynamics of the suspect may be the only issue when identifying whether a statement is given voluntarily. In contrast, Mr Justice Frankfurter confirmed that it is the totality of circumstances that is the deciding factor. 164
The cases continued in this vein 165 in that the vulnerability of the suspect was recognised as one of the factors when assessing the totality of the circumstance, and the cases also began to recognise the importance of the sixth amendment within the totality of circumstances test. 166 The position of the fourteenth amendment appeared to change following the decision of Arizona v Miranda 167 as the Supreme Court set out minimum rights for suspects when they are detained and questioned. It has been stated that Miranda changed the approach to the due process clause in a detrimental manner. 168
Miranda, Vulnerability, Due Process and Fair Warning
A sea of change appeared to transpire when Miranda v Arizona was heard by the Supreme Court. In the case the court set out the requirements of a Miranda warning, and this recognises the importance of the fifth and sixth amendment rights. 169 It was stated that a defendant must be given a warning as to these rights and that an individual can waiver those rights. 170 The Supreme Court also reviewed the cases that had dealt with the fourteenth amendment and voluntariness, and stated that there was a lack of certainty as each case was dealt with on its own facts. 171 The judgment was restrictive as it did not provide a comprehensive assessment of vulnerability, and the Miranda court only specified that ‘the very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals’. 172 It has been proposed by Brenner that the decision in Miranda restricted the development of the voluntariness doctrine and caused the due process clause to ‘fall into the shadows’. 173 The rationale for such assertions was that suspect's rights were affirmed in Miranda, and that a suspect has the opportunity to waiver those rights and a waiver normally denotes voluntariness. In contrast, Hancock submits that Miranda merely incorporated previous judgment's regarding due process and the fifth and sixth amendment. 174 The pre-Miranda cases indicate that the comments of Hancock and Brenner can be considered to be an accurate reflection of the development of the fourteenth amendment, as Miranda seemed to take prime position and appeared to be a natural evolution of the law and rights. Hancock also suggests that there is a distinction to be drawn between Miranda and due process cases as the former is a remedy for non-coerce cases and the latter for coerced cases. 175 If this is the approach that has been adopted then the Miranda warning is deficient in considering the vulnerability of a suspect as a pivotal issue, as the warning is the primary concern. 176 An investigation into the effectiveness of the Miranda waiver is beyond the scope of this paper, but post Miranda due process cases have considered the waiver as a factor when evaluating the totality of circumstances. The protection afforded to vulnerable suspects and the Supreme Court fourteenth amendment decisions following Miranda will now be considered. 177
The Fourteenth Amendment and the Case Law Following Miranda
The totality of circumstances approach to the fourteenth amendment confession cases denotes that it was far from obsolete, but the test has not evolved. The duality of the test can be seen in Mincey v Arizona 178 where the Supreme Court stated that it was necessary to carefully evaluate the circumstances of the interrogation. In that case Mincey was in hospital and seriously injured. He had been read his Miranda rights, but the detective refused to accept his right to silence, even though Mincey had not waivered his rights. Caminsky proposes that the court utilised the voluntary/involuntary approach to the admissibility of the confession, but the court offered no assistance on how to apply the rule. 179 The suggestion by Caminsky demonstrates that the fourteenth amendment was functioning of its own accord, but such an approach did not consider vulnerability in isolation as the police tactics and the mental state of the defendant were factors in determining the totality of the circumstances.
Fourteenth amendment cases continued to be heard by the Supreme Court and in Fare v Michael 180 the court affirmed that the totality of circumstances test is the approach to ascertain whether a youth's confession is voluntary. 181 The judgment confirmed that the Miranda warning, age, mental capacity and experience are factors that the court will consider when deciding whether a confession is voluntary, and reinforces the position that vulnerability is not the only factor that will be considered. In Fare the court recognised that the youth was not vulnerable as he was well versed in the criminal justice system and was aware of his rights. Boyd suggests that the decision in Fare v Michael is the catalyst for allowing youths to be assessed in the same manner as adults. 182 There was nothing innovative or restrictive within the judgment as the Supreme Court continued utilising the totality of circumstance approach as they restated the test and this can include factors that are relevant to youth such as age, experience, education background and intelligence. 183 Feld also proposes that the court in Fare v Michael rejected further protection for youths, and this is a more account reflection of the case. 184 Feld's quest for further protection for the vulnerable is admirable and the solution to this concern is evident in that if a suspect is vulnerable then personal risk factors ought to be considered in isolation. The test could and should have evolved to be more flexible by determining voluntariness by exclusively assessing personal risk factors, but this was not the outcome of the case and disregard for internal factors in isolation continues to be the recurring theme in the judgments emanating from the Supreme Court.
Fourteenth Amendment and the Requirement of External Factors: Connelly v Colorado
A more far-reaching decision in regards to clarification surrounding the admissibility of a vulnerable suspect's confession can be seen in the Supreme Court decision of Connelly v Colorado. 185 In Connelly 186 the suspect had walked up to a police officer and confessed to murder. The man was suffering from mental illness and at the time was ‘experiencing command hallucinations’. 187 The court declined to follow the counsel's argument that the confession should have been excluded because of the suspect's mental capacity. Chief Justice Rehnquist stated that there could be no evaluation of a confession by assessing the ‘defendants state of mind’ in isolation. 188 It was confirmed that the totality of circumstances is a two-part assessment that reviews police coercion and the individual circumstances of the suspect. 189
The totality of circumstances test restricts the ambit of the constitutional right of due process by stipulating that a breach cannot emanate from the characteristics of the defendant and thereby excludes consideration of vulnerability in isolation. Thus, if there have been no inappropriate activities by the police then there can be no interference with the admissibility of the confession under the due process clause. The court were explicit in explaining that coercive police tactics are an essential ingredient for exclusion under the fourteenth amendment, and Chief Justice Rehnquist stipulates that it would require a new constitutional right: ‘Only if we were to establish a brand-new constitutional right – the right of a criminal defendant to confess to his crime only when totally rational and properly motivated – could respondent's present claim be sustained’.
190
Pace suggests that this and the court disregarding reliability from due process is the correct approach. 191 The Supreme Court and Pace do not consider that reliability and voluntariness are intricately linked, and an involuntary confession can be made that is likely to be unreliable and an assessment of an individual's mental capacity can denote that the confession could be involuntary. This is something that Brennan and Marshall stipulate in their dissenting judgment. 192
Another point of relevance is that Rehnquist did not to consider the concept of fundamental fairness, but this was identified by Brennan and Marshall and throughout other Supreme Court judgments when assessing the due process clause. 193 Fundamental fairness ought to extend to the vulnerability of suspects, and this is all the more pertinent when it is recognised that a confession should be treated with extreme caution. 194 Hourihan suggests that the judgment diffracts from earlier case law by disregarding the tentative approach to confessions from vulnerable suspects. 195 It is evident that the approach that was adopted in cases such as Blackburn were undermined when the Court held that coercive police behaviours is an essential ingredient in determining voluntariness. It is the dissenting judgment in Connelly by Justice Brennan and Justice Matthews that provide a cogent rationale for what is asserted within this paper: that a vulnerable suspects characteristics can be assessed in isolation when determining the admissibility of a confession. Justice Brennan delivered the minority judgment and stipulated that the majority judgment's failure to recognise all forms of involuntary confession denotes a lack of consideration of free will and fundamental fairness. 196 The proposition asserted by Brennan would have been a welcome development, but it is evident from the judgment that vulnerable suspects characteristics would only be assessed when determining the totality of circumstances. Connelly v Colorado is the most recent significant case to have an impact upon vulnerability and voluntary confessions.
The Connelly judgment did not cease cases being heard by the Supreme Court. In Withrow v Williams the Court affirmed that the Miranda warning was a factor to assess when determining the totality of the circumstances in a due process claim. In that case the Court provided several examples of factors which may be taken into account when assessing the totality of circumstances. 197 In terms of vulnerability the Supreme court have been specific about the vulnerability of a youth. In JDB v North Carolina 198 the Supreme Court identified numerous studies that recognise vulnerability but specified that this is a factor that must be considered under the totality of circumstances. It is the Federal Circuit Courts that have provided further assessment of vulnerability, but it is an examination of the totality of circumstances that is still paramount in due process cases. 199 Thus, the current position requires a review of the totality of circumstances, and vulnerability is a factor that can be considered when determining the two-part test.
The decisions of the Supreme Court cases are explicit in that to assess whether the confession infringed the fourteenth amendment the court must ascertain whether the police's behaviour played a role in the confession. There can then be an evaluation of further factors and the police behaviours and other factors combined are defined as the totality of the circumstances. The further factors extend the parameters to encompass the composition of an individual and include vulnerable suspects. A two-part test hinders the possibility of excluding a confession, and can increase the vulnerable suspect's accountability, as if there is no coercive behaviour by the police then there can be no claim for an infringement of the fourteenth amendment. The most senor court in the USA has provided guidance on when an individual's vulnerability will be considered but fails to take into consideration the vulnerability of the suspect in isolation. It denotes that an individual who is extremely suggestible and acquiesces to authority may be confessing to crimes they have not committed something that is recognised by the Supreme Court. 200 In order to remedy this there needs to be a mechanism that ensures that legal advice is mandatory or alternatively that internal factors are considered in isolation. The next part of the article will now provide a comparative analysis of the English position and the fourteenth amendment as mechanisms for excluding a confession.
English Law and United States Supreme Court: Comparing the Approaches to Excluding Confessions Within the Jurisdictions
The legislative framework in England and the fourteenth amendment continue to follow the common law approach to excluding confessions as each accommodate the exclusion of a confession when there has been malpractice by the interviewing/investigating officers and each jurisdiction is able assess the competency of a suspect. This is an age-old approach, but it is evident that the law is not evolving to meet contemporary needs. When determining the admissibility of a confession each jurisdiction may evaluate several factors and these include external factors such as the behaviour of an investigator. The courts may then assess internal factors and ascertain whether the ability of the individual to provide a voluntary confession has been impeded in some manner, and can include an evaluation of the cognitive abilities of the suspect. In the Supreme Court of the USA the assessment of the internal and external matters is via the totality of circumstances test. The English position evaluates external and internal factors by identifying whether the confession has been obtained by oppression or anything said or done in the circumstances existing at the time. It is clear that when deciding whether to exclude a confession external factors can be assessed in isolation, and external and internal factors can be assessed together. The concern is that there is no exclusivity attached to Internal factors, and the law needs to evolve to accommodate these factors in isolation. A comparison will begin by evaluating external factors. The focus will then move on to compare the jurisdictional approaches to assessing external and internal factors, and finally there will be a critique of the English and fourteenth amendment limited approach to internal factors.
External Factors and the Admissibility of a Confession
The statutory framework within England identifies that the court can exclude a confession that has been obtained through external factors and this is defined as being obtained through oppression. 201 Within English law oppression has been given its ordinary literal meaning and to rely upon this provision there must be some malpractice on the part of the police thereby denoting that external factors are essential within this section of the statute. 202 There is no consideration of the vulnerability of the suspect, but it has been recognised that certain suspects characteristics may denote that there has been no oppression. 203 It is evident that the oppression provision provides no protection to a vulnerable suspect. The same approach is replicated by the utilisation of the fourteenth amendment in the Supreme Court and the early cases on police behaviour. The position at that time explicitly stated that physical and psychological abuse would not be tolerated, and this continues to be the position when reviewing external factors. In Brown v Mississippi the brutality of the police conduct was the catalyst for exclusion, and in Chambers v Florida oppressive psychological factors led to the confession being excluded. 204 The Supreme Court like the English jurisdiction do not fully consider vulnerability, as the focus is upon an evaluation of the external factors. When assessing external factors in isolation both jurisdictions adopt a disciplinary approach to the exclusion of evidence, and serious misconduct will lead to the exclusion of a confession. 205 This is not to say that either jurisdiction disregards internal factors as it is an evaluation of the external and internal factors that assesses the vulnerability of the defendant, and this will now be considered and compared.
External and Internal Factors as a Means to Exclude a Confession
The English statutory framework and the fourteenth amendment accommodate a two-part test when reviewing the admissibility of a confession. This denotes that each of the jurisdiction assess the admissibility of a confession by reviewing external and internal factors. The English jurisdiction's statutory framework stipulates that anything said or done in the circumstances existing at the time is the threshold for exclusion. 206 The anything said or done element relates to external factors whilst the circumstances existing at the time assesses internal factors. 207 Various factors have been identified as external factors, and the most relevant in regard to a vulnerable suspect is an appropriate adult not being present when the vulnerable suspect is in custody. 208 The absence of an appropriate adult has led to the exclusion of a confession, but rather worryingly it has also been stated that an appropriate adult may be irrelevant, and a confession may still be admissible. 209 The approach to external factors that are reviewed by the USA Supreme Court consider all manners of behaviours and include an assessment of police conduct. 210
It is the next part of the English statutory provision that assesses the vulnerable suspects characteristics. They have been identified as a number of factors but must be linked to the first part of the test for a confession to be excluded. An approach of this kind is largely replicated by the Supreme Court assessment of the fourteenth amendment when utilising the totality of the circumstances test. The Supreme Court will consider internal and external factors in deciding the admissibility of the confession. Each element of the tests will now be considered.
Totality of Circumstances, Anything Said or Done and the External Factors
In England there are a number of factors that can be identified as anything said or done, but the court have restricted the ambit of the provision by stipulating that they must be external to the suspect. 211 A vulnerable suspect cannot rely upon their own cognitive disposition under anything said or done and the first part of the test is limited to an evaluation of external categorisations. Thus, anything said or done must emanate from an external source. One of the most relevant external factors in England is that a confession may be excluded if an appropriate adult is not present. 212 For this to apply the absence of an appropriate adult must have an impact upon the suspects abilities to make a decision. 213 The approach by the English jurisdiction is largely replicated by decisions in the US Supreme Court where it has been identified that the absence of an interested adult can be something to be considered when evaluating the totality of circumstances. 214 The appropriate adult and the interested adult may be seen as essential support to vulnerable suspects, and their absence may be instrumental is determining whether a confession will be excluded. The absence of an appropriate adult or an interested adult does not conclusively determine whether a confession will be excluded, and it is the next part of both tests that provide consideration of the internal factors.
Circumstances Existing at the Time and the Internal Element of Totality of Circumstances
English law recognises that circumstances existing at the time are internal factors that can cause a confession to be excluded. There has been extensive discourse regarding internal factors, but they are not considered in isolation as external factors are an essential requirement. In England the courts have stated that age and mental capacity are elements that fall within internal factors, but one concern with the English position is that there are inconsistent judgments when determining mental capacity and other relevant matters. For example, in Foster a suspect was not considered to be mentally impaired even though they had a mental age of 10, was highly suggestible and ‘on the borderline of being mentally defective’. 215 Each element of that diagnosis would typify that Foster is the type of individual who would be more likely to provide a false confession and serious consideration should have been afforded to these internal factors. 216 Contrastingly, in R v W, factors similar to those identified in Foster have been considered relevant in determining whether to exclude a confession. 217 The approach in R v W is the correct approach, but it was the external factors (things said or done) that were the determining factor (absence of an appropriate adult) in that case. The fourteenth amendment cases also recognise that age, mental capacity and education are factors that need to be considered. 218 This is something that causes the same concern as the English position as individuals who have a low mental age have still been considered in the same manner as normal adults. As a result, there is a lack of consistency within the case law emanating from the Supreme Court of the United States. For example, in Haley v State of Ohio 219 the court recognised that the age of the suspect was relevant, whilst in Culombe a suspect with the mental capacity of an 8- to 9-year-old was not be considered in the same context as a child.
It would be beneficial if both jurisdictions consider the vulnerability of the suspect as a primary concern, but the current approach is insufficient as external factors are an essential ingredient when determining whether a confession ought to be excluded. In England the courts have expressly stated that mental capacity is relevant but external factors are fundamental. In the USA the Supreme Court have also emphasised the necessity of police misconduct when reviewing the totality of circumstances. Either approach does not assist in supporting vulnerable suspects and does not offer sufficient protection. It does indicate that this area of law needs further refinement so that internal factors can be viewed in isolation.
Internal Factors as a Way to Exclude a Confession
Neither English law nor the US Supreme Court recognise internal factors as the only mechanism to exclude confessions, and this is a cause for concern. It seems obvious that there will be occasions when there is no police malpractice or anything said or done, and the vulnerable suspects characteristics necessitate evaluation in isolation. Each jurisdiction has had the opportunity to visit this concern but neither provide a desirable outcome. In England Lord Taylor stated that there may be occasion to exclude such confession, but this is through tightly drawn circumstances. 220 It is the English position in Isquella that would have been the best approach as this suggested that internal factors may be a way of determining admissibility. 221 In the case of Connolly v Colorado the Supreme Court of the USA disregarded internal factors in isolation by stating that coercive police behaviour was a necessary requirement when evaluating the totality of circumstances test. There appears to be a lacuna in the law of each jurisdiction, and there requires an adjustment with the statutory framework in England and from the Supreme Court of the USA. It seems clear that there should be another mechanism incorporated into the English statutory framework and the fourteenth amendment whereby internal factors can be explicitly evaluated in isolation. 222 An approach of this type can be achieved by a new statutory provision in England and a restatement of fundamental fairness by the Supreme Court in the USA.
Conclusion and Suggestions for Reform
The above discourse has identified that a vulnerable suspect may provide a false confession and that confession evidence in this context ought to be excluded. In the first part of the paper, it was recognised that vulnerable suspects are susceptible to falsely confessing to a crime, and provided the foundational basis for the assertion that vulnerable suspect's necessitate careful consideration. It was identified that a number of factors can cause a vulnerable suspect to confess. These factors were stated to be personal risk factors (internal factors) and situational risk factors (external factors), and each were examined in turn. The internal factors include the personal characteristics of the suspect, and that disability, age and youth can play a pivotal role in causing a vulnerable suspect to confess to a crime that they have not committed. There was also an evaluation of external factors that may also cause a vulnerable suspect to confess. These included being in isolation, in custody, and the police interview. It was recognised that it can be combination of internal factors and external factors or either factor in isolation that can cause a false confession.
The second section of the work critically evaluated the English statutory framework and the case law following the implementation of the Police and Criminal Evidence Act 1984. The first provision under examination stated that a confession will be excluded if it was obtained by oppression, but this provision does not consider the vulnerable suspect, and requires ‘impropriety on the part of the interrogator’. The second provision allows for a confession to be excluded if it was extracted via things said or done in the circumstances existing at the time. It was evident that this entailed a two-part examination of the circumstances surrounding the confession. The first part of the test assesses things said or done and these must be external to the suspect. It is the second part of the test that examines the characteristics of the suspect and includes an evaluation of the mental capacity of the suspect. But this is still restrictive in nature as internal factors will not be considered in isolation. Two other statutory provisions were investigated but neither expressly stipulate that a confession from a vulnerable suspect will be excluded. s77 applies when a confession is from a vulnerable suspect and requires the judge to state that need for caution when summing up for the jury. s78 is not exclusive to vulnerable suspects and is a wide-ranging provision regarding the exclusion of prosecution evidence. In sum it can be stated that the law recognises external factors or a combination of external factors and internal factors but there is no consideration of internal factors in isolation.
The USA Supreme Court cases and the fourteenth amendment did not provide any clarity regarding vulnerability. The primary focus of the earlier cases was physical and psychological coercion, but there was no consideration of the vulnerability of the suspect. An alternative approach by the Supreme Court of fundamental fairness was then examined, as this approach could evaluate the admissibility of a confession by exclusively evaluating the characteristics of the suspect. The Supreme Court did not follow the fundamental fairness approach and reviewed and continues to review cases through a totality of circumstances lens in that the characteristics of the suspect can be a factor that is considered. An examination of Miranda v Arizona followed and it was identified that the court stated that each suspect is entitled to protection regarding right to silence and access to an attorney, but there was very little discourse regarding vulnerability. The next part of the discussion of the United States Supreme Court and the fourteenth amendment cases focused upon the post Miranda cases, and how the court has restricted the development of the law. The court stated in Connelly v Colorado that vulnerability alone is insufficient, and that police coercion is an essential ingredient for the totality of circumstances test thereby denoting that it is a two-part test.
A comparison of the jurisdictions identified that there were three mechanisms by which confessions in the two jurisdictions could be compared. The first comparison was the use of oppressive tactics, and it was accepted that both jurisdictions will exclude confessions that have been extracted in this manner. It was also recognised that vulnerability is not fully assessed in that section. The second element was a comparison of two tests: things said or done in the circumstances existing at the time and the totality of circumstances. This identified that the English and United States Supreme Court cases were similar in that they both evaluated the admissibility of a confession by reviewing external and internal factors. The concern with this approach was that although the characteristics of the suspect are considered they are not evaluated in isolation. The final part of the comparison was a review of the jurisdictions position on assessing the validity of a confession by reviewing the suspects’ characteristics. It was identified that neither jurisdiction provides an effective means to exclude a confession by assessing the suspects’ characteristics.
It seems that there is a lacuna in the law of each jurisdiction, and England requires an adjustment to the statutory framework and the Supreme Court of the USA need to revisit confessions in due process cases. A refinement of the law in both jurisdictions would reinforce the reliability principle whereby an exclusive assessment of the characteristics of a vulnerable suspect could conclude with the exclusion of a confession. It can be achieved by a bespoke statutory provision in England and a reinstatement of fundamental fairness in the USA. Any remedial statutory provision could be added to the Police and Criminal Evidence Act 1984 by inserting s77A:
77A Exclusion of a Confession made by a vulnerable person
In a trial on indictment any question whether a confession was made by a vulnerable person whether raised:
by a party to the proceedings, or by the court of its own motion, shall be determined by the court in accordance with this section The court must exclude any confession evidence if the person who confessed is considered to be vulnerable. It is for the defence to satisfy the court that, on a balance of probabilities, that the defendant was vulnerable at the time that the confession was made. Any proceedings held for the determination of the question shall take place in the absence of the jury. Any questioning of the witness (where the court considers that necessary) shall be conducted by the court in the presence of the parties. In determining whether an individual is vulnerable:
expert evidence may be received on the question and any other circumstances that the court consider to be relevant In this section:‘vulnerable’, in relation to a person, means that he is in a state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning.
The suggested provision would place the onus on the defence to prove the vulnerability of the defendant, and if proven then the court must exclude the confession. To determine the vulnerability of the defendant either party to the proceedings may call an expert to give evidence, and the court may consider any other circumstance, for example, that the suspect was supported by an appropriate adult and received legal advice from the outset. These inbuilt mechanisms are inserted into the proposed provision as they will ensure that the issue is dealt with fairly and may have avoided cases such as R v T.
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The definition of vulnerability is extracted from the original s77. Another alternative that may appear to be more palatable to some is that vulnerable suspects should be provided with mandatory legal advice from an individual who is trained to deal with vulnerable suspects.
Footnotes
Declaration of Conflicting Interests
The authors declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.
Funding
The authors received no financial support for the research, authorship and/or publication of this article.