THE NEW TESTS OF ADMISSIBILITY OF CONFESSION UNDER THE EVIDENCE ACT 2011

By Jide Bodede

1. THE TEST OF VOLUNTARINESS ABOLISHED

1.1 The Evidence Act 2011 abolished the test of voluntariness and it is no longer the yardstick for determining the admissibility of confessions. By virtue of the provisions of section 29 of the Evidence Act, any confession obtained by the oppression of the defendant, or made in consequence of anything said or done to the defendant which was likely to render the confession unreliable, is inadmissible. Sadly, despite the introduction of the new provisions counsel and Judges alike still use the term “voluntary” to discuss the admissibility of confessions. Understandably, there is still a paucity of judicial precedent on the interpretation of the new exclusionary principle of evidence contained in section 29 of the Evidence Act. However, since the provisions of section 76(2) of the Police and Criminal Evidence Act (PACE) 1984 are similar to section 29(2) of the Evidence Act, judicial decisions of English courts on the subject are of persuasive authority.

1.2 There is a new barometer for the admissibility of confessions and the key operative words are “oppression” and “reliability”. Section 29(2) of the Evidence Act 2011 states that “If, in any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the court that the confession was or may have been obtained, (a) by the oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence; the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section.” Furthermore, section 29(3) of the Evidence Act states that the court may of its own motion require the prosecution to prove that the confession was not obtained in violation of the provisions of the section. This new provision now permits the court to suo motu raise the issue of oppression or unreliability of a confession and order a trial within trial. 

1.3 Under section 27 of the repealed Evidence Act, only voluntary confessions were relevant and admissible. However, the Act did not define the meaning of the term “voluntary” and there was a divergence of opinion on the interpretation of the term. The conditions which made a confession not to be voluntary were defined by the provisions of section 28 of the repealed Evidence Act but the conditions which will make a confession to be regarded as unreliable are not limited by section 29 of the Evidence Act 2011. Therefore, voluntariness is a narrower concept than reliability and previous judicial decisions on the voluntariness of confessions may still be relevant in the application of section 29(2) of the Evidence Act.

2. PROOF OF OPPRESSION OR UNRELIABILITY

2.1 The defendant only has to raise the issue or introduce evidence of oppression or unreliability. The prosecution on the other hand must prove beyond reasonable doubt that the confession was not obtained by the oppression of the defendant or made in consequence of anything likely to render the confession unreliable. In Paris,[1] Lord Taylor CJ said on the interpretation of section 76(2) of PACE,

“Three points on that section require emphasis. First, the issue having been raised by the defence, the burden of proving beyond reasonable doubt that neither (2)(a) nor (2)(b) applied was on the Crown. Secondly, what matters is how the confession was obtained, not whether, or not it may have been true. Thirdly, unless the prosecution discharged the burden of proof, the judge was bound as a matter of law to exclude the confession. His decision was not discretionary.”

2.2 Only reliable confessions are relevant and admissible. To determine whether or not a confession is reliable the court must examine everything said or done to the defendant from time of arrest up to the end of interrogation and determine whether any confession obtained in such circumstances would be unreliable. The test in section 29(2) of the Evidence Act is objective and therefore if the acts done or words spoken were likely to induce an unreliable confession, then even if the particular confession was true, it would still be inadmissible. The conditions or circumstances that must exist before the trial court can invoke the prohibition against unreliability and render the confession inadmissible are not stated in the Evidence Act. Therefore, it is clear that those conditions cannot be exhaustive but we shall examine some of them.

3. UNRELIABLE CONFESSIONS       

3.1 Refusal to Grant Access to Counsel.

3.1.1 The failure to grant the defendant access to counsel may render a confession unreliable. Section 35(2) of the Constitution FRN provides that every suspect has the right to counsel before answering any questions during custodial interrogation. Section 17 of the Administration of Criminal Justice Act 2015 provides that every suspect in custody shall be given access to legal advice. See also, section 9 of the Administration of Criminal Justice Law, Lagos State 2011. In McGovern,[2] the initial denial of access to a solicitor rendered the confession unreliable, despite the fact that the court knew from later confessions made in the presence of a solicitor that the first confession was in fact true.

3.1.2 In Samuel,[3] the defendant was arrested on suspicion of armed robbery and taken to a police station for questioning where his request to see a solicitor was denied. Section 58(1) of the Police and Criminal Evidence Act 1984, in England, states that

“A person who is in police detention shall be entitled if he so requests, to consult a solicitor privately at any time.”

On appeal against conviction, the Court of Appeal held that the refusal of access to a solicitor rendered the confession inadmissible. The Court said that “Perhaps the most important right given to a person detained by the police is his right to obtain legal advice.”

3.2 Failure to Comply with Rules of Custodial Interrogation

3.2.1 A violation of the rules of custodial interrogation may render a confession unreliable and inadmissible. These include; (i) the failure to properly caution the defendant about the right to remain silent during interrogation, section 35(2) of the Constitution FRN; and (ii) the right to have a lawyer present before a confession was obtained, section 9(3) of the Administration of Criminal Justice Law of Lagos State (ACJL). Any procedural failures or breaches of the rules of custodial interrogation can form the basis for challenging the admissibility of a confession on the ground of unreliability under section 29(2)(b) of the Evidence Act. A violation of the constitutional rights of the defendant may also render a confession inadmissible under section 14 of the Evidence Act.

3.2.2 In Suberu v The State,[4] the investigating police officer obtained statements separately from two persons jointly charged with an offence but he did not show the appellant the statement of his co-defendant and did not give him the opportunity to react to the statement. Rule 7(1) of Criminal Procedure (Statement to Police Officers) Rules 1960 provides that,

“When a police officer has decided to make the same compliant against two or more persons and their statements are taken separately, the police officer shall not read such statement to the other person or persons, but each of such persons shall be given a copy of such statements and nothing shall be said or done by the police to invite a reply.”

The Supreme Court held that the statement of the co-defendant was not legally admissible evidence against the appellant and could not be used against him. 

The Miranda Warnings.

3.2.3 The gravity of these violations of rules of custodial interrogation is such that many jurisdictions frown upon them. It is instructive that even in the United States of America the failure to caution the defendant on the right to remain silent and the denial of access to counsel during interrogation is a ground for challenging the admissibility of a confession. In Miranda v Arizona,[5] the Supreme Court of the United States held that the prosecution may not use statements of a defendant obtained by law enforcement officers during custodial interrogation unless it demonstrates the presence of effective safeguards to secure the privilege against self-incrimination under the 5^th Amendment. The safeguards are that the suspect must prior to the interrogation be informed clearly that he has the right to remain silent and that anything he says may be used against him in court and the suspect must be informed clearly that he has the right to consult with a lawyer and to have the lawyer present during interrogation.

3.3 Inducement or Promise.

3.3.1 Any inducement or promise (but not a threat) made to the defendant to obtain the confession will be a valid ground for challenging the reliability of a confession. This will include a promise of leniency or exclusion from prosecution. It is important to note that the inducement or promise may either concern or be made to the spouse of the defendant or family member or any other person intimately connected with the defendant such as a lover or friend.[6] These relationships may evoke strong emotions and cause the defendant to make a confession.

Belief in witchcraft

3.3.2 It is important to draw attention to two points. First, under the new Evidence Act 2011, the inducement or promise is no longer required to be made by a person in authority. However, the promise or inducement must still relate to the charge against the defendant and the defendant must have believed that by making the confession he would gain an advantage or avoid the evil of a physical nature. The threat of juju or witchcraft is not a threat of a temporal nature and belief in witchcraft or other spiritual powers are subjective. Second, it appears that threats of any kind will now be regarded as oppression since section 29(5) of the Evidence Act defines oppression to include the actual use or threat of violence.       

3.4 Other Factors Affecting Reliability.

Other factors which may affect the reliability and admissibility of a confession and which the trial Judge should consider in a trial within trial include; (i) whether or not the confession was retracted at the earliest opportunity before a senior police officer or in a second statement; (ii) the nature of incriminating evidence disclosed to the defendant by the police before the confession was made; (iii) the contents of the statement in relation to the level of literacy of the defendant; (iv) the pattern of the sentences in the statement in order to discover whether it is a flowing and consistent story or disjointed answers in response to prompting questions from the police during interrogation.[7]

4. CONFESSIONS OBTAINED BY OPPRESSION

4.1 Meaning of Oppression

4.1.1 Section 29 of the Evidence Act 2011 states that a confession is not admissible in evidence if it was or may have been obtained by the oppression of the defendant. Section 29(5) of the Act defines oppression to include torture, inhuman or degrading treatment, and the use or threat of violence whether or not amounting to torture. In Fulling,[8] the Court of Appeal held that oppression in section 76(2) of the PACE should be given its ordinary dictionary meaning. Lord Lane CJ said,

“This is in turn leads us to believe that oppression in section 76(2)(a) should be given its ordinary dictionary meaning. The Oxford English Dictionary as its third definition of the word runs as follows:

‘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.”

4.1.2 The definition of oppression in section 29(5) of the Act is not exhaustive and any similar violation of the rights of the defendant will also constitute oppression. It is instructive that the use of torture or inhuman or degrading treatment is a violation of the fundamental rights of a defendant but the constitution does not define those terms. Section 34(1)(a) of the Constitution FRN states that

“no person shall be subjected to torture or to inhuman or degrading treatment.”

Any confession obtained by acts that infringe the constitutional rights of a defendant can also be excluded under the provisions of section 14 of the Evidence Act 2011 on the grounds that the confession was obtained in consequence of an impropriety or in contravention of a law. We shall now examine some of the situations that may constitute oppression of the defendant.

4.2 Torture, Violence or Threats

The application of direct physical force to the person of the defendant or to any person related to or closely connected to the defendant will be a valid ground for challenging a confession by reason of oppression. Any acts of torture and the use of violence whether or not amounting to torture constitutes oppression against the defendant. In addition, the mere threat of violence without the application of direct physical force to the person of the defendant will also constitute oppression. See section 29(5) of the Evidence Act. In COP v Alozie,[9] Nweze JSC said,

“the Courts are bound to reject an accused person’s confession which eventuated from torture, duress, threat or inducement.”

4.3 Denial of Food or Necessities

The denial of food or other basic necessities or medicines vital to the health and sustenance of the defendant will be a valid ground for challenging a confession by reason of oppression. The denial of food or basic necessities is unjust, cruel, inhuman and degrading treatment and constitutes oppression against the defendant. See section 29(5) of the Evidence Act and section 34(1)(a) of the Constitution FRN.  

4.4 Undue Hostility or Intimidating Conduct

4.4.1 Any undue hostility or intimidating conduct towards the defendant by police officers during interrogation may be a valid ground for challenging a confession by reason of oppression. Acts of undue hostility or intimidating conduct and threats of violence against the defendant will be an exercise of authority or power in a burdensome, harsh or wrongful manner and constitute oppression. In Paris,[10], the defendant was bullied and harassed by police during interrogation and the Court of Appeal in England held that the interrogation was oppressive. The interview had lasted 13 hours and during that period the police repeatedly shouted at the suspect what they wanted him to say but the suspect denied involvement over 300 times. In contrast to the case of Emmerson,[11], where a police officer raised his voice and used bad language to the defendant during interrogation but the Court of Appeal held that such conduct was not oppressive.

4.4.2 The nature of the defendant’s character may determine the manner of interrogation and the decision of the court as to whether or not the interrogation was oppressive. Where the defendant is a hardened criminal, the police may require tougher interrogation which may not be regarded as oppressive. In Hudson,[12], a man of previous good character was subjected to lengthy and sometimes unlawful interrogation and the Court of Appeal held that the interrogation was oppressive. In contrast, Dodd,[13], where the defendants were hardened criminals and the Court of Appeal held that the harsh interrogation was not oppressive.

4.5 Prolonged Custody of the Defendant

The prolonged custody of the defendant can be a valid ground for challenging a confession by reason of oppression. The prolonged custody of the defendant without trial amounts to inhuman or degrading treatment and will constitute oppression. Section 35(4) of the Constitution FRN states that,

“any person arrested or detained shall be brought before a court of law within a reasonable time and where the defendant is in custody without bail he must be tried within two months from the date of his arrest or detention.”

Therefore keeping a defendant in custody for more than two months without trial in violation of the Constitution or for longer than the term of imprisonment prescribed for the offence may constitute oppression under section 29(2)(b) of the Evidence Act.

Conclusion

In spite of the new provisions of the Evidence Act and the ACJL, the word ‘voluntary’ is still widely used by the police in the standard caution in written statements made by defendants. Furthermore, the standard caution currently used by the police does not contain any reference to the right to consult a lawyer or to have a lawyer present.   

The admissibility of confessions is a matter which arises frequently in criminal trials and it is only a matter of time before we are inundated with decisions of the Supreme Court on the provisions of section 29 of the Evidence Act. This is my humble contribution to the development of this area of the law.

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*Jide Bodede LLM(Lond). Author of Criminal Evidence in Nigeria.  Principal at Lawfields Solicitors & Advocates.

REFERENCES

[1] (1993) 97 CAR 99 at 103.

[2] (1991) 92 CAR 228. See also, Walsh (1989) 91 CAR 161

[3] (1987) 87 CAR 232. See also, Wahab (2003) 1 CAR 232, Alladice (1988) 87 CAR 380, Re Prolux (2001) 1 All.E.R 57 at 46, Crampton (1991) 92 CAR 372  

[4] (2010) 3 MJSC (pt.2) 47. See also, Fatilewa v The State (2008) 3 MJSC (pt.2) 47.

[5] (1966) 384 US 486, See, Dickerson (2000) 530 US 428.

[6] Omotoso v COP (1961) NSCC 314.

[7] See, Namsoh v The State (1993) NWLR (pt.292) 129.

[8] (1987) 85 CAR 136 at 138. This dictum was quoted with approval in Paris (1993) 97 CAR 99 at 103.

[9] (2017) LPELR-41983(SC)

[10] (1993) 97 C.A.R 99.

[11] (1991) 92 CAR 284

[12] (1980) 72 CAR 163

[13] (1981) 74 CAR 50, See also, Seelig (1992) 1 WLR 148.