Law And Science : The Injustice Of Confessions

Confession may be good for the soul, but it is, I submit, positively harmful to the establishment of scientific truth in any legal venue.  It is a notorious fact that some people will confess to crimes which they never committed, or which never happened.  It is another notorious fact that confessions extracted under torture are extremely likely to be false.  A plea of 'guilty' in court amounts to a confession, but may be a result of plea bargaining by an innocent person.

If a confession is withdrawn the jury should not be told that there ever was a confession. It may well be the case that a withdrawn confession appears to be supported by other evidence.  A dispassionate and skilled observer may note, and question, discrepancies between the evidence and a confession.  The average jury, I suggest, will not.  Rather, I suggest as a simple matter of human psychology that a jury will be so swayed by any confession that they will take far less care in scrutinising the evidence.

From a scientific perspective it is therefore arrant nonsense to rely on any system of criminal justice which requires a defendent to make a plea of guilt or innocence.  In order to preclude any possibility of an innocent person being convicted as a result of a false confession of any kind, all criminal courts should exclude any evidence which even approximates to a confession.  No defendent should ever be offered the option to be convicted out of his or her own mouth. To my mind, the worst injustice of every judicial system that I have studied is that a criminal defendent is asked to plead guilt or innocence.  The clincher to this argument, I suggest, is that if evidence of confession is not allowed into court then there is no incentive whatsoever for any law officer to forge a confession or to torture a suspect.

It is common knowledge that there are some people who will confess to crimes that they have not committed, most commonly murders.  In many cases, they get the details so wrong that it soon becomes clear that they have no connection with the crime.  In some instances such pathological confessors can materially affect the investigation.  A detective who has dealt with a few such pathological confessors may well be 'primed' to disbelieve the true murderer.  This seems to have happened in the case of Britain's longest running miscarriage of justice.

Britain's Longest Standing Miscarriage of Justice

On the 4th day of December, 1979, 22 year-old Teresa Elena de Simone was found murdered in her car.  She had been raped.  The car was in a covered car park in Southampton.  Investigations showed that she must have been attacked within a very short time after her friend Jenni Savage had driven away in her own car.

The man eventually arrested, tried and convicted for the crime was Sean Hodgson.  Sean Hodgson, also known as Robert Graham Hodgson, was arrested in Southampton on the 6 December, 1979 for the offence of theft from a vehicle. He confessed to the murder.  Sean Hodgson's trial defence team were never told that six other people had also confessed to the killing.  It is now certain, judging by recent DNA tests, that the true killer was one of those six: David Lace.

On 25th December, 1979, Hodgson wrote a further confession, claiming to have killed a man in Covent Garden, London.  On 27th December he further "confessed" that he had also murdered a homosexual in a flat in North London at the end of 1978 or 1979. Investigations showed that the confessions were self-evidently false: neither of the crimes had actually happened.

The appellant's confessions were crucial to his conviction. The Crown did not rely on the confessions as such. They focused on the detail provided in the confessions which, on the Crown's case, could only have been known to the man who was responsible for the crime. They relied on other matters as supportive of the confessions, such as the findings consistent with the appellant's blood group, and his undoubted presence in the locality at the relevant time. It is perhaps worth emphasising that it was never suggested at any stage in the trial, or indeed in any material which we have seen, either that any one of the individuals who reported that the appellant had made a confession to him was lying or mistaken about the fact and terms of the confession, nor that anyone to whom he had made a confession, including in particular the police, had behaved improperly by bullying or pressurising him in any way at all. In other words, on the evidence before the jury it was not disputed that everything that he was reported to have said had been said by him and that what he had said was voluntary. Obviously, so far as his own written admissions are concerned, he wrote them and they too were voluntary.
Regina v Robert Graham Hodgson, Court of Appeal, Criminal Division, [2009] EWCA Crim 490, at 17.

In the above cited report, at 43, it is clear that the DNA evidence exonerating Hodgson was reported to his appeal team by letter of 30th January 2009.  In a well-regulated legal system, Hodgson would have been exonerated within days.  Instead, archaic and inefficient rules of court procedure were followed.  Since appeals had been lodged before, and had failed, any further appeal could only be made via the Criminal Cases Review Commision (CCRC).   The CCRC is drastically underfunded and understaffed.  It operates, not by seeing how many cases it can investigate fully, but by seeing how many cases it can reject without further ado.  To my mind, that is a major failing.

The Special Crime Division of the Crown Prosecution Service wrote to the CCRC on 26th February 2009 to the effect that if the CCRC would refer the case to appeal, such appeal would not be opposed.  This had the effect of 'oiling the wheels' and the case was referred on 4th March 2009.  It was heard on the 18th of March 2009.

[the unsafe conviction] can now be rectified. The decision leaves some important, unanswered questions. Perhaps the most important is that we do not know who raped and killed the dead girl. We can but hope for the sake of the appellant and the family of the murdered girl that her killer may yet be identified and brought to justice. But for now all we can do is to quash the conviction. It is accordingly quashed. The appellant will be discharged. There will be no new trial. This judgment will be posted on the judicial website as soon as possible.
Regina v Robert Graham Hodgson, Court of Appeal, Criminal Division, [2009] EWCA Crim 490, at 45.

The same DNA evidence which exonerated Hodgson has now led to the identification of David Lace as the real killer.

Concluding remarks

This case is but one of many in which evidence of confession has led to a miscarriage of justice.  It is not just a matter of high-profile cases.  In all criminal courts, magistrates and juries are too ready to believe police officers and prison inmates who give evidence of private conversations in which the accused is alleged to have made statements amounting to a confession.  Having analysed many hundreds of trial transcripts I conclude that in the English courts there are about 10,000 findings of guilt each year which never reach appeal.  In the main, it appears that there are too many obstacles in the way of the appeals procedure.  It may well be that a person subjected erroneously to a fine or suspended sentence will consider an appeal to be not worth the effort.

The laws of evidence must be amended to make trials more scientific.  The appeals process against wrongful conviction must be made simpler and speedier.  For as long as our legal systems allow unscientific findings to be used as a basis for criminal conviction, each and every one of us is in danger of being convicted for a crime that they did not commit and in danger of languishing in prison with no genuine avenue of appeal.

References and Recommended Reading

The appeal transcript: Regina v Robert Graham Hodgson
News story, Police Name David Lace: TimesOnLine

Pages from a book edited by Clive Walker, Professor of Criminal Justice Studies, University of Leeds and Keir Starmer, Barrister, Doughty St Chambers: Miscarriages of Justice

Related Reading:
The Lockerbie Injustice
Law and Science : #2 The Chicken Little Mentality