The voir dire system allows a defendant to give his evidence on the limited issues surrounding the circumstances under which his statement was made as to the admissibility of the confession, without infringing his right to elect not to give evidence in the trial of the general issue. The committee confirmed the rule excluding from admission evidence improperly obtained: ‘The basic control over admissibility of statement are found in the evidential rule that an admission must be voluntary i.e. not obtained through violence, fear or prejudice, oppression, threats and promises or other improper inducements. See decision of Lord Sumner in IBRAHIM v. R (1914-15) AER 874 at 877. It is to the evidence that the court must turn for an answer to the voluntariness of the confessions.’
Lord Hailsham said: ‘I have stated elsewhere (Director of Public Prosecutions v. Ping Lin [1976] A.C. 574) that the rule, common to the law of Hong Kong and that of England, relating to the admissibility of extra-judicial confessions is in many ways unsatisfactory, but any civilised system of criminal jurisprudence must accord to the judiciary some means of excluding confessions or admissions obtained by improper methods. This is not only because of the potential unreliability of such statements, but also, and perhaps mainly, because in a civilised society it is vital that persons in custody or charged with offences should not be subjected to ill treatment or improper pressure in order to extract confessions. It is therefore of very great importance that the courts should continue to insist that before extra-judicial statements can be admitted in evidence the prosecution must be made to prove beyond reasonable doubt that the statement was not obtained in a manner which should be reprobated and was therefore in the truest sense voluntary. For this reason it is necessary that the defendant should be able and feel free either by his own testimony or by other means to challenge the voluntary character of the tendered statement. If, as happened in the instant appeal, the prosecution were to be permitted to introduce into the trial the evidence of the defendant given in the course of the voir dire when the statement to which it relates has been excluded whether in order to supplement the evidence otherwise available as part of the prosecution case, or by way of cross-examination of the defendant, the important principles of public policy to which I have referred would certainly become eroded, possibly even to vanishing point.’
Judges:
Lord Edmund-Davies, Lord Hailsham
Citations:
[1978] UKPC 34, [1979] Crim LR 168, [1979] 1 All ER 939, [1979] 2 WLR 81, [1980] AC 247, (1979) 69 Cr App R 47
Links:
Jurisdiction:
England and Wales
Citing:
Approved – Regina v Hnedish 1958
(Canada) ‘Having regard to all the implications involved in accepting the full impact of the Hammond decision [1941] 3 All ER 318 which can, I think, be summarised by saying that regardless of how much physical or mental torture or abuse has been . .
Approved – Chitambala v The Queen 1961
Clayden ACJ said: ‘In any criminal trial the accused has the right to elect not to give evidence at the conclusion of the Crown case. To regard evidence given by him on the question of the admissibility as evidence in the trial itself would mean . .
Cited by:
Cited – A, B, C, D, E, F, G, H, Mahmoud Abu Rideh Jamal Ajouaou v Secretary of State for the Home Department CA 11-Aug-2004
The claimants had each been detained without trial for more than two years, being held as suspected terrorists. They were free leave to return to their own countries, but they feared for their lives if returned. They complained that the evidence . .
Cited – Regina v Mushtaq HL 21-Apr-2005
The defendant was convicted of fraud charges. He sought to have excluded statements made in interview on the basis that they had been obtained by oppressive behaviour by the police. His wife was very seriously ill in hospital and he had made the . .
Cited – A and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
Evidence from 3rd Party Torture Inadmissible
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice
Updated: 11 June 2022; Ref: scu.199968
