Confessions

Confessions

In examining confessions from mentally incapacitated persons, there are two issues to consider. The first relates to the competence to give evidence in court. Section 3 of the Evidence Ordinance states that persons of unsound mind are to be considered incompetent to give evidence if, at the time of examination, they appear incapable of receiving just impressions of the facts about which they are being examined, or incapable of relating them truly.

Even if they are competent to give evidence, the voluntariness of their confession must also be considered. In other words, the confession cannot have been obtained by fear of prejudice, hope of advantage, or oppression. (see further “Voluntariness”) This is particularly relevant for persons with mental disability, who often have increased vulnerability in this context because of several reasons, such as:

1. Persons with mental disability may be more suggestible and tend to be more compliant with authority figures, often agreeing just because they want to please.
2. Persons with mental disability may have difficulty understanding their rights, or the consequences and implications of what they say.
3. Persons with mental disability may have a heightened sensitivity to stress, which may affect their ability to navigate the interrogation, and in some cases, may cause the person to falsely confess simply to end the unpleasant experience.

4. The behaviour of persons with mental disability may be misinterpreted by law enforcement officers as being a sign of guilt, which in turn can affect the way the officers conduct the interrogation and the amount of pressure they apply on the person.