INTRODUCTION
2.1 Introduction
Legal rules can be found in text books and parliamen- tary enactments. A true comprehension of these, however, requires some knowledge of their past. The purpose of this chapter is to give an historical evolution of the law governing confessions. Although this study is not about the right to remain silent, it is possible to regard the law of confessions as one manifestation of that right. Similarly, although this investigation is not about torture, torture as a method used in the past for eliciting a confession will be discussed.
2.2 Torture in general
One commentator' remarked that the word "torture" is sufficient to conjure in the minds of many a feeling of revulsion, distaste, discomf ort and anger. A dictionary definition of torture includes:
1 Rudolph Security, Terrorism and Torture: Detainees Rights in South Africa and Israel: A Comparative study
(1984) 155.
"the infliction of excruciating pain, as practised by cruel tyrants. savages, brigands [and others] as a means of extortion; spec. jUdicial torture, inflicted by a jUdicial or quasi-judicial authority, for the purpose of forcing an accused or suspected person to confess, or an unwilling w i t n e s s to give e v i d e n c e or information; ....,,2
Broadly speaking, torture may be classified into two categor ies;' name ly "terror i st ic torture" and
"interrogational torture". In the case of "terroristic torture" , the purpose of the torture cannot be accomplished and may not even be capable of being influenced by the victim. This type of torture is exercised for no particular reason other than the ultimate death of the victim. It would appear also that terroristic torture may be applied to a hostage in order to persuade interested parties to honour certain demands. This type of torture is not relevant to the law of confessions.
The purpose of "interrogational torture" is to extract information
from
the tortured person. As soon as the required information is obtained, the "torture" is discontinued - in this way, then, the tortured person2 The Oxford English Dictionary (Compact ed) 3357; see RUdolph 160.
3 RUdolph 160; see Shue (1977-8) Philosophy and Public Affairs 124-132.
to torture.'
Holdsworth warned that:
"Once torture has become acclimatized in a legal system i t spreads like an infectious disease. It saves the labour of investiga- tion. I t hardens and brutalizes those who have become accustomed to use it.,,5
On the other hand, i t has been said that terror and brutal investigation of crime are siamese twins that can never be separated.'
2.3 Early history of the law of confessions
Interrogation as a method of investigating crime is not new. The bible informs' us that when Adam was asked: "Hast thou eaten of the tree?" his reply was:
"The woman whom thou gavest to be with me, she gave me of the tree, and I did eat." A question was also put to Cain. He was asked: "Where is Abel thy brother?"
and he replied evasively: "Am I my brother's keeper?"
4 See para 2.4 infra.
5 A History of English Law (1924) 194-5.
6 RUdolph 176 where the learned author quoted Danny Rubinstein "On dealing with terrorists" Jerusalem post 15 February 1979.
7 Genesis 3:11 and 4:9-10.
The practice of sUbjecting an accused to interroga- tion, which frequently included the use of torture, was familiar to both the Greeks and the Romans.' Among the Greeks and under the Roman Republic torture was almost entirely confined to slaves, and as a rule no free citizen was sUbjected to it. In Greece, i t was thought to be the only way to have the truth from a slave if he had been tortured. The Greek orators shared the view that a slave's evidence given under torture was always true, whereas evidence given freely was often false. The psychology underlying this view was that a man - and more particularly a slave - would tell all sorts of stories in order to avoid being torturedj but if he persisted in his story under torture, it must surely be true.' The other reason for torturing slaves is to be found in the belief that slaves, being absolutely a': the mercy of their masters, would naturally testify in accordance with the masters' wishes, unless some strong incentive to speak the truth were brought to bear on them." The law was that evidence of an untortured slave was suspected of falsehood.
8 Cohn "Tortures and confessions" cited Admissions and Confessions , studies Criminal Evidence (1972) 98.
in Friedman in Canadian 9 Cohn 98; see Kaufman The Admissibility of Confessions in Criminal Matters (1974) 2ed 13; Lowell "The judicial use of torture" 1897-98 Harvard L Rev 220.
10 Lowell 22.
similarly, testify,
the Romans did not permit slaves to save in a few cases.11 But when they testified, their evidence was as a result of torture. c
In England, the practice of torturing suspects was in existence until the reign of Charles I." In Scotland the use of torture was not abolished until 1709."
Gradually, the practice of torture was discontinued, and the emphasis shifted to threats.
Our law of evidence has its roots in English law.
English law of evidence was applied in our courts until 1961 when the Union of South Africa became the Republic of South Africa. Similarly, the American and the Canadian law of evidence was originally based on English law. In English law, a confession was originally regarded as a plea of guilty and as such, i t was regarded as "the best and surest answer that can be in law for quieting the conscience of the jUdge and for making it a good and firm conviction."lS During
11 Kaufman 13.
12 Buckland A Text book of Roman Law (1950) 657.
13 Charles I was King during the period 1625-1649; see Jardine Use of Torture in the Criminal Law of England
(1836) .
14 See The Treason Act, 1708 (UK).
15 Kaufman 1; see Stanford Pleas of the Crown (1607) 51;
Hawkins Pleas of the Crown (1716) 31.
the eighteenth century this meaning of a plea of guilty (that is, a jUdicial confession) was expanded to include an extra-judicial confession. The latter is a confession as defined earlier on.l'
The English court remarked in Ruddl1 that a confession made under threats or promises must be excluded in the ensuing trial. Lord Mansfield based his obiter dictum on his experience of cases decided before the Rudd decision. As far as it can be established in English case law, the Rudd case is regarded as a beginning to the recognition that a confession is admissible if i t is a free and a voluntary statement admitting guilt.
Following the obiter dictum in the Rudd case, a meeting of English judges was called upon to decide a question of law reserved in Warickshall.18 The trial court had to reserve a question of law because at that time an accused had no right to appeal nor a right to testify on his behalf or to employ the assistance of counsel. The facts in the Warickshall case were briefly as follows:
16 See Chapter 1 supra.
17 (1775) 168 ER 160.
18 (1783) 168 ER 234.
W had been charged as an accessory after the fact in that she had received stolen property knowing it to have been stolen. W confessed her guilt, and the stolen property was found in W's bed as a result of her confession. The trial court, per Lord campbell CJ, rejected the confession because it had been made as a result of a promise of favour. The question then was whether the evidence of the property discovered as a result of an inadmissible confession was admissible.
Counsel for W argued that both the inadmissible confession and the evidence of the discovered property was inadmissible on the same ground.
rejected that argument."
The court
The reason for such rejection was because counsel's argument had been based on a mistaken notion. The opinion of the court was that confessions were received in evidence or rejected under a consideration whether they were entitled to credit or not. The court held that a free and voluntary confession is deserving
•
the highest credit because it is presumed to flow from the strongest sense of guilt, and therefore it is admitted as proof of the crime to which i t refers."
But, a confession forced from the mind by the flattery
19 Warickshall 234.
20 Warickshall 235.
of hope, by torture or fear, comes in so questionable a shape when i t is to be considered as evidence of guilt, that no credit ought to be given to it. This principle is not applicable to facts discovered as a result of an inadmissible confession. Such facts must be proved independently without recourse to the inadmissible confession from which they have been derived. The underlying principle here is that facts discovered as a result of an involuntary confession exist invariably in the same manner notwithstanding how they were found. The Warickshall decision was made during the period when the death penalty was a competent sentence for theft. The court rightly held that i t would be an exceedingly hard case that a man whose life is at stake, having been lulled into a notion of security by promises of favour, was nevertheless condemned as a result of his confession.
The impact of the Warickshall decision on later cases"
was that for' a confession to be admissible it had to be satisfactorily proved that it was made freely and voluntarily without an inducement made by a person in authority. This enabled the courts to reject a confession if a slightest inducement was proved to be present during the making thereof. The courts were
21 See Thompson (1783) 1 Leach c.c. 291.
inclined to suppress almost all confessions. This was caused by various factors.
The character of an accused brought to court following a confession elicited sympathy from the courts.~ Those accused came mostly from the lower classes. As such, they were characterised by subordination, half respectful and half stupid towards those in authority over them.~ Moreover, accused persons could not appeal against their conviction and sentence. For all practical purposes, criminal appeals in English law were not allowed until 1907 when the Court of Criminal Appeal was established.~ The practice before that was the reservation of a question of law by trial jUdges for subsequent consideration by a meeting of jUdges.
The other option was that a trial jUdge should discuss doubtful cases with his accessible colleagues. That practice involved delays, and jUdges preferred to rej ect doubtful confessions. In this way many confessions were rej ected even where there was insufficient reason for doing so. The other reason for a court's sympathy with accused persons was that at
22 Chadbourn Wigmore's Evidence in Trials at Common Law (l970) vol 3 at 298 et seq.
23 Chadbourn 299.
24 The Criminal Appeal Act, 1907 (UK) clause 23.
common law the accused had no right to testify on his behalf or to engage the assistance of counsel in his defence. The right to legal representation was not given until 1836. But as early as 1750 i t had become customary to allow counsel to cross-examine for the accused and to do everything except addressing the jury." Prior to 1820I two hundred and twenty-two offences were punishable with death. For that reason, a confession was excluded on every available pretext.
The leniency of the courts after the Warickshall decision had to be brought to an end. For that reason, Baldry" was decided in 1852 (that is seventy-nine years after Warickshall) as a means to put the law of confessions in its proper perspective. The facts of that case were as follows: B was charged with murder in that he had allegedly administered poison to his wife with intent to murder her. A policeman was called to investigate the crime. B was questioned by the policeman in the presence of Dr V and P, another constable. B covered his face with his handkerchief and the interrogator believed that B was crying. B was warned that he need not say anything to incriminate himself, but that what he said would be taken down and
25 Chadbourn 300.
26 (1852) 169 ER 568.
would be used as evidence against him. B made a confession. The question to be decided by the court was the admissibility of that confession.
Counsel for B argued that the confession ought to be rejected because the warning implied that B's case was so bad that if he had told the truth he could not deny
it.~ This argument amounted to saying that B had been coerced to confess. Counsel for B argued further that the law was suspicious in the highest degree of confessions, because it suspected that the jUdge was not getting at the truth as to the way in which the confession was obtained. Counsel's argument was interrupted by Lord Campbell who asked whether the following words imparted a promise or threat:
"You need not say anythir.g to incriminate yourself, but what you do say will be taken down and used in evidence against you."
B's counsel argued that if you show a suspect that you entertain a conviction that he is guilty, that has the effect of disarming him, and that what you say there- after has the effect of inducing him falsely to incriminate himself. The court did not find this elaborate and able argument of counsel persuasive enough. Pollock C B (that is, Chief Baron) remarked
27 Baldry supra 571.
that the reason why an involuntary confession was not admitted in evidence was that it would not be safe to receive a statement made due to any influence or fear.2lI There is no presumption of law as to the falsity or unreliability of an involuntary confession.
An involuntary confession is rej ected because the court deemed i t dangerous to leave i t to the jury. The jury is a trier of fact whereas the judge is the trier of law. It was not clear what weight a jury would give to an involuntary confession. That is the reason for its exclusion from the evidence. A caution to the accused had the effect of reminding him that he was not obliged to say anything but if he said anything i t had to be true. But this caution had to be distinguished from the situatior. where the accused had been informed that it was "better" for him to tell the truth because i t imparted that it was better for him to say somethjng. That may constitute a promise. In casu, Lord Pollock found that the caution was in order and that i t had the effect of warning the accused that he did not need to incriminate himself and that what he said would be used as evidence either of his guilt or as evidence in his favour.
28 Baldry supra 573.
Parke B (that is Baron) concurred in the above decision and added that in terms of the common law, a confession was rendered admissible in evidence if there was proof that i t was perfectly voluntary, and that any inducement held out by a person in authority, initiated the confession." Lord Parke confessed that he looked at previous decisions with some shame as the rules excluding confessions had been extended too far, and in that way justice and common sense had been too frequently sacrificed at the shrine of mercy. Eyre J
also concurred and pointed out that when a confession was well proved i t was the best evidence that could be produced; and that unless i t could be clear that there was no threat or promise to have induced it, i t ought not to be excluded. Eyre concurred that justice and common sense had been sacrificed, not at the shrine of mercy, but at the shrine of guilt.
In Thompson" the court made it abundantly clear that the burden is on the prosecution to prove the voluntariness of a confession beyond a reasonable doubt. If there is no proof, the court must reject the confession.
29 Baldry supra 574.
30 (l893) 2 QB l2.