Interrogation and Confession

A Study of Progress, Process and Practice

Ian Bryan

• Publisher: Routledge
• Year: 2019
• Print ISBN: 9781138337121
• eBook ISBN: 9780429809606
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

First published in 1997, Interrogation and Confession has two important concerns. The first is with the structures and strategies that have evolved within the criminal justice system not only to entrench the confession as key item of prosecution evidence but also to legitimate the custodial interrogation of suspects by law enforcement personnel. The second major concern is with kinds of police-suspect encounter that appear in official accounts of custodial interrogation. Based upon a systematic analysis of prosecution papers associated with over 650 Crown Court cases, the author provides vivid and challenging insights into the nature of police-suspect relations and closely examines: the extent to which evidence is constructed (rather than elicited); how far formal rules impact upon the character and form of police-suspect relations during interrogation; the circumstances in which suspects elect or decline to cooperate with the police; and the extent to which records of custodial interrogation can be said to be complete, accurate and reliable.

PART I

HISTORICAL BACKGROUND

1 The Evolution of Trial by Jury and the Place of Confession Evidence

Introduction

Confession evidence emerged as a central feature of the administration of justice following the thirteenth century displacement of adjudicative structures which, by and large, relied upon accusatory procedures. Under these procedures a private party would make an accusation and swear an oath to its truth. The accused, in contesting the case, would respond by asserting, also on oath, that the accusation was false.¹ In more serious cases the judgment of God was solicited through the ordeal.² Alternatively, the parties in dispute, or parties designated by them, would engage in judicial combat. This was also considered to be a form of ordeal “on the grounds that God would permit the victory only of the party in the right”.³

The great reliance the ‘pre-modern’ modes of proof placed upon the judgment of God meant that before the thirteenth century confessions, as evidence sufficient to prove guilt, played only a marginal role in the administration of justice. This chapter will discuss the conditions and events that, firstly, contributed to the displacement of the ancient modes of proof; secondly, that attended the advent of the petit jury mode of trial and with it the need for the adduction of evidence; and, finally, that saw confession evidence become legitimated as “the queen of proofs”⁴ in the increasingly specialized machinery of secular justice established following the Norman Conquest.

Evolution of the Jury of Accusation

Exalted as one of the most fundamental and ideologically important institutions of common law justice,⁵ trial by jury has its antecedence in the eleventh century invasion and settlement of England by the Normans.⁶ With the Conquest, the Norman kings introduced a centralised system of government, administered by delegates of royal power, which came to displace the disparate arrangement of communal tribunals that employed “irrational” modes of proof and trial.⁷ While the precise origins of the jury remains a matter of debate,⁸ it is generally accepted that the Normans contributed to the evolution of the English jury with their introduction of the inquest.⁹

The inquisition or inquisitio procedure became a regular feature in the administration of the Norman system of central government¹⁰ and evolved to form what is understood to be “the root from which the English jury springs”.¹¹ Also known as the recognitio,¹² the Norman inquest was initially a royal device of inquiry used for both fiscal and administrative purposes.¹³

The compulsory ex officio oath was central to the operation of the inquisitio. With it, Crown officials would command members of the gathered inquisition to answer truly to the questions propounded to them. The inquisitorial oath was seen as a device through which spiritual forces could be employed to meet the temporal requirements of the Crown and was considered to be a strong guarantor of veracity since all who were subject to it were presumed to have material knowledge of the facts in question.¹⁴ Indeed, on their assembly before officers of the King, those who were ignorant of the facts at issue were required by their oaths to say as much and would therefore be excluded from the inquisition.¹⁵

Under Henry II (1154-1189) the inquisition was extended beyond matters of direct and immediate concern to the administration of government and became a “purchasable favour” granted to prominent or respectable individuals involved in private disputes.¹⁶ It thereby afforded those in receipt of this royal favour a means of avoiding modes of justice which relied upon the transcendental judgment of the spiritual rather than the terrestrial impressions of members of the local community charged by their oaths to surrender pertinent testimony.¹⁷

In its earliest form the inquest required a body of neighbours summoned from the relevant community to answer — upon their oaths, as witnesses, before officers of the Crown — to questions of a proprietary and fiscal nature. It was later made available to individual litigants to eventually become an established part of the accusatory process.¹⁸

Largely as a result of the extension of the availability of the inquest during the reign of Henry II, the ancient modes of proof, together with the local tribunals that administered them, began to be “gradually suppressed” as the common law, under the direction of the King and his delegates of itinerant justices, began to be routinely enforced.¹⁹ Though they varied in their application, the ancient methods of proof were almost entirely based upon oaths and ordeals.²⁰ Paradoxically, under the older modes of trial proof was to follow judgment; the judgment determined which of the parties in dispute was to prove his case, the mode of proof and the consequence of failing to meet the requisite proof.²¹ The system of oaths ranged from the single unsupported exculpatory oath of the individual challenged to meet the charge against him, to a procedure which required a certain number of oath-helpers or compurgators to support the oath of the defendant with that of their own.²²

Maitland (1908) suggests that the system of oaths was restricted to lesser crimes whilst graver charges required a “direct and open appeal to the supernatural” through the ordeal.²³ He describes the four chief forms of ordeal as follows:

The Ordeal of hot iron: the Accused is required to carry a hot iron in his hand for nine steps, his hand is then sealed up and the seal broken on the third day, if the hand is festered then he is guilty, if not, innocent; the Ordeal of hot water: the accused is required to plunge his hand into hot water, if the Ordeal is simple, to the wrist, if threefold, then to the cubit; the Ordeal of cold water: the accused is thrown into water, if he sinks he is innocent, if he floats he is guilty; the Ordeal of the morsel: a piece of bread or cheese of an ounce in weight is given to the accused, having been solemnly adjured to stick in his throat if he is guilty….²⁴

After the Conquest the ordeal — with its reliance upon divine intervention rather than human action for the disposition of cases — was increasingly regarded with scepticism.²⁵ This scepticism appears to have contributed to the development of the inquisition from a device designed to identify and protect proprietary and fiscal interests, to a means of discovering and suppressing crime,²⁶ which through the imposition of fines and forfeitures was also a source of royal revenue.²⁷

The Assize of Clarendon (1166),²⁸ later buttressed by the Assize of Northampton (1 176),²⁹ formally incorporated the inquisitio into the increasingly systematized machinery of criminal justice.³⁰ It required that inquiry be made in every county, hundred and vill of twelve lawful men or knights representing the community. The twelve were charged by their oaths to ‘present’, before the itinerant justices of the King, any accused or notorious criminals or harbourers of them. Those accused in this manner were to be put to trial by ordeal.³¹

Thus by the Assize of Clarendon and that of Northampton, the Crown formally institutionalized the jury of presentment which, as the grand jury, survived in its basic form until the twentieth century.³² By placing the community under an obligation to present suspected persons before its officials, the Crown was no longer entirely dependent upon the initiative of private individuals to mount an appeal. Indeed, Maitland (1908)³³ suggests that the appeal system — once the principal method of initiating proceedings³⁴ — began to be threatened from the late twelfth century as appellees increasingly sought and gained from the Crown the privilege of answering appeals instituted against them throug...

Table of contents

• Cover
• Half Title
• Dedication
• Title Page
• Copyright Page
• Table of Contents
• List of Tables
• Acknowledgements
• Introduction
• Part I: Historical Background
• Part II: Enter the Police
• Part III: Images of the Police-Suspect Dynamic
• Bibliography
• Index