Essay: Wrongful conviction

Wrongful conviction is a serious problem that exists in many legal systems. There are many causes of wrongful convictions but within this essay we are concerned with false confessions as a cause of wrongful conviction.
There will be an assessment of the measures that the Scottish criminal justice system has in place to prevent wrongful conviction based on false confessions.
Firstly, there will be an explanation of whether false confessions are a cause of wrongful
Conviction. There will then be an assessment of the measures which are in place to prevent false confessions, these are; the admissibility test, the corroboration requirement, the right to legal assistance and the right to silence, there will also be a discussion of their effectiveness. Furthermore, additional safeguards will be proposed which can be put in place to reduce wrongful convictions based on false confessions, these are; electronic recording of police interrogations, judicial directions and expert evidence on false confessions, educating judges on the dangers of false confessions, and police training.
Before identifying whether false confessions are a cause of wrongful conviction in Scotland, it is important to discuss why people confess falsely. There are many reasons for this, and as a result different types of false confessions have been identified : Firstly, there are voluntary false confessions. We have coerced-compliant false confessions, this is usually when the suspect is induced to make a false confession. Lastly there is coerced internalized; this is when the suspect is made to believe that he had committed the crime.
Is there persuasive evidence that false confessions are a cause of wrongful conviction?
Before identifying the measures that the Scottish system has in place to prevent wrongful conviction based on false confessions, we must consider the extent to which wrongful conviction based on false confessions occur within Scotland.
Within Scotland the extent to which wrongful convictions occur is not known as there has not been any analysis or research into the causes of it. This may be the case as there have not been any scandalous cases on wrongful conviction which tend to trigger research. However, Clive Walker had identified different wrongful conviction cases which had arisen within Scotland, he suggests that wrongful conviction does occur within Scotland and the causes are similar to those in England and wales. We may therefore consider the causes in other jurisdictions;
In England and wales the study of Brandon and Davies (1973) reviewed 70 cases of wrongful conviction and false confessions was identified as being one of the causes . In the USA Gross and Shaffer, analysed the national registry of exonerations and studied the causes of wrongful conviction in 873 exoneration cases in the US . They identified that false confessions occurred in 135 (15%) . They identified that 60% were coerced and 11% were voluntary .
Thus, among different jurisdictions false confessions are a cause of wrongful conviction, and as there is a consistency in the findings they be seen as a cause of wrongful conviction in Scotland. However, the rate at which false confessions resulting in wrongful conviction occur is not known.
The measures the Scottish CJ system has in place to prevent Wrongful Conviction based on False Confessions and their effectiveness:
Having identified that false confessions are a cause of wrongful conviction, there will be an explanation of the measures in place within the Scottish criminal justice system to prevent wrongful conviction based on false confessions and a discussion of their effectiveness.
Admissibility (fairness) test for confessions
Under the Scottish law in order for a confession to be admissible it must be obtained fairly .
Confessions which are made as a result of threats, inducements or undue influence will be inadmissible , this means that the test can reduce false confessions that are obtained by coercive police tactics, as a finding of inadmissibility would discourage the police from engaging in such conduct.
However, what about the situations where a false confession has been made without any unfairness? For instance, it is unlikely that the fairness test will prevent the occurrence of voluntary false confessions. Furthermore, even if it is concluded that it can prevent false confessions made due to police malpractice, we cannot determine how effective it is in actually doing this, as the rate at which they occur is not known.
Thus, the admissibility test is not sufficient in itself in preventing false confessions and therefore additional safeguards are necessary.
The corroboration requirement
In relation to confession evidence in addition to satisfying the fairness test, the corroboration requirement needs to be fulfilled , thus there must be an additional different and independent source of evidence to support a crucial fact of an offence before the accused can be convicted of a crime.
It has been argued that one of the purposes of the corroboration rule is to prevent false confessions . This may well be the case as; the confession in itself is not sufficient evidence, so it will be useful in preventing voluntary false confessions as additional evidence is needed. Further it encourages the police to look for further evidence rather than giving up their search and focusing on the confession and the requirement of corroboration prevents the risk of the jury convicting the accused simply on the basis of the confession . This is important as the jury usually regard the confession as being strong evidence, and see it as being irrational or contrary to common sense for a person to confess falsely . Corroboration can therefore be seen as a ‘’invaluable safeguard in the practice of our criminal Courts against unjust conviction” .
However, the corroboration requirement may soon be abolished , it is argued that it does not prevent miscarriages of justice . If it is abolished it may be thought the system may well be in a worse off position, for instance if we look at the English jurisdiction there have been many scandalous cases such as the Guildford four, the Birmingham seven, and that is a system without corroboration. The fact that there have not been many such scandalous cases in Scotland indicates that the corroboration requirement may well be doing its job in reducing wrongful conviction.
Furthermore, it is argued that the corroboration rule has been weakened by judicial interpretation . For instance, in relation to self-corroborating confessions, the courts have taken a broad approach to the need of “special knowledge”. Sometimes the information held by the suspect might not be something which is only known by the perpetrator, the suspect may know of this information due to contact with the accused, the media, through the police, and in such circumstances the courts have held that it is sufficient to provide for corroboration . Thus, the confession does not have to contain actual “special knowledge”. This is problematic for the innocent person who knows of such information, as the onus would lie upon him to show how he came to know of such information .
Recommendations have been made to deal with this issue; It is suggested that corroboration should be retained for confession evidence and special knowledge confessions should be limited “strictly” to cases where the only explanation for the information known by the accused was that he committed the offence . Thus, there should be a change in judicial approach, where they should no longer take a broad approach but rather should be strict. There is evidence that the judiciary has in some cases resorted to the “strict knowledge requirement” , and this is the approach that the courts ought to take.
It can therefore be seen that the corroboration requirement is a very important safeguard in the Scottish criminal justice system, and it should not be abolished. If it is to be abolished it should be retained for confession evidence with a stricter approach to self-corroboration.
Right to Legal Assistance (RLA)
Within the Scottish law a suspect has the right to have a solicitor present at a police interview , and he may also waive this right . It was not until the case of Cadder v HM advocate that the RLA was recognised in Scotland.
How then does the RLA prevent false confessions? the presence of a solicitor can prevent the police from using coercive tactics, inducements or engage in any misconduct which would result in a false confession being made. If such tactics are used it is argued that a solicitor can act as an independent observer . Furthermore, a solicitor can help suspects enforce their right to silence as well as understand it.
However it is not perfect, many problems can be highlighted; its effectiveness depends upon the type of false confession which is made, when it comes to voluntary false confessions it will not be effective as such suspects may waive the right, or even if they do not waive it any legal advice they receive may not have a great impact.
Furthermore, the uptake of the RLA is low, for instance 75% of suspects chose to waive it in 2017 . There is a solution to this problem, the RLA can be made compulsory, however this is not advisable as it would undermine the suspects personal autonomy as it is the suspects choice as to whether they invoke the right or not, additionally there may be cost implications.
It has a limited role in preventing wrongful conviction based on false confessions. It can reduce some false confessions but not all.