Cell confession evidence – evidence from inmates alleging that the accused has confessed to the crime – is a discrete but controversial covert policing resource. This type of evidence can be volunteered to investigators by the source, though rarely is it done so unconditionally. In other cases, it is a result of the deliberate use and conduct of a covert human intelligence source, authorized under the Regulation of Investigatory Powers Act 2000. Seldom is it used other than in the most important cases and, if mismanaged, it often has catastrophic consequences for the criminal justice process.
A review of the cases in this area demonstrates not just the effect of poor handling of cell confession evidence but also the wide range of issues it gives rise to. For example, payments to sources by the press (R v Stone  EWCA Crim 105), the offer of a reward (R v Maxwell  1 WLR 1837), the interaction between the source and accused amounting to “the functional equivalent of an interrogation” (R v Allan  EWCA Crim 2236), and disclosure failures (R v Clarke and Drury  EWCA Crim 2849). Insofar as principles can be identified, these can be found in two Privy Council decisions where cell confession evidence formed a substantial part of the case against the appellants.
In Pringle v The Queen (Appeal No 17 of 2002) the Board emphasized that it was impossible to lay down fixed rules about how a judge should direct the jury in a cell confession case. It held:
“The indications that the evidence may be tainted by an improper motive must be found in the evidence. But this is not an exacting test, and the surrounding circumstances may provide all that is needed to justify the inference that he may be serving his own interest in giving evidence. Where such indications are present, the judge should draw attention to these indications and their possible significance. He should then advise them to be cautious before accepting the prisoner’s evidence.”
This approach was followed in Labrador v The Queen (Appeal No 88 of 2002). In this case, the Board added that the court should take a two-stage approach when directing the jury, first identifying the evidence inferring that the prisoner’s own evidence may be tainted and secondly advising them to treat the evidence with caution. It is “the responsibility of the judge to add his own authority to [the] submissions by explaining to the jury that they must be cautious before accepting and acting on that evidence.”
Where the Crown intends to call cell confession evidence, they are under an obligation to research the antecedents and character of the prisoner beforehand (R v Causley  EWCA Crim 2398). This was re-stated recently in R v Taylor  EWCA Crim 2398.
An interesting variation of the disclosure implications arose in the recent case of R v Bhayani and Kutner  EWCA Crim 352. Both appellants had been charged with murder, the Crown case being that they were jointly responsible. However, only Bhayani was convicted. Kutner – not the Crown – relied on cell confession evidence, although it is clear from the judgment that the investigators had played a significant role in the acquisition of the evidence.
Shortly after the commencement of the trial and following a disclosure hearing with the judge, the Crown revealed to the appellants that Bhayani had, following his arrest, given a number of accounts of his involvement in the murder. The source of the information was not identified and it was accepted that the disclosure was, in any event, provided late due to delays identifying the trial judge and the ill health of the caseworker.
Bhayani gave evidence. He was cross-examined on behalf of Kutner and the allegation of the confessions was put to him. The defence thereafter sought further disclosure. This resulted in disclosure of the witness (known as X). The Crown had not previously understood the basis upon which X had provided evidence and accepted that they should have done. X agreed to testify. The disclosure of material relevant to X’s credibility was significant. He had over forty previous convictions for dishonesty and five for perverting the course of justice, had lied on oath, and had impersonated a police officer. His account of the alleged confession had serious flaws.
On appeal, the court considered complaints that the disclosure had come at a very late stage and at a disadvantageous time for the appellant. The defence did not have sufficient time to obtain evidence completely undermining X and his evidence was decisive.
The Court dismissed the appeal. It did find the late disclosure regrettable but had to consider the impact of this on the overall fairness of the trial. Since conviction, the appellant had not produced any significant material undermining X’s credibility. X was not a Crown witness, nor had the Crown relied on his evidence and had not cross-examined him. Once they grasped the issue, they made substantial disclosure of material touching on X’s credibility. The judge had given a strong warning to the jury about approaching X’s evidence with care. “In the end,” the court held “it was for the jury to assess the value of X’s evidence in the light of the judge’s direction.”
Although the appeal failed, the judgment is a salutary lesson for investigators and prosecutors considering their disclosure obligations, where they are aware cell confession evidence may be called. Even accounting for the absence of a nominated trial judge and illness, the disclosure issues in this case were left unacceptably late. Early appreciation and management of the issues to which this problematic but often valuable evidence gives rise is essential if difficulties are to be avoided, some of which may have serious implications for the fairness of the trial process.
Headline image credit: Cell block d, by Sean Hobson. CC BY 2.0 via Flickr.