16: Confessions

Question 1

What is a confession?

Answer 1

statement wholly/partly adverse to person who made it. MUST = adverse when made. Not limited to formality. Only a confession made “by” D = may be evidence against him.

Question 2

What is the general rule for confessions?

Answer 2

confession by D admissible if:

1. Relevant; and
2. Not excluded on grounds of oppression or in consequence anything said/done unreliability.

Question 3

Is a guilty plea a confession?

Answer 3

yes

Question 4

What happens if a plea is retracted?

Answer 4

court MAY decide it not be given by pros because of adverse effect on fairness = s78. Retracted plea MAY be relied on by co-Dm court’s discretionary exclusion under s78 doesn’t apply.

Question 5

Where D is convicted of “not guilty” plea is this a confession?

Answer 5

shouldn’t be understood as confession.

Question 6

Is a confession a mixed statement?

Answer 6

Confession may = oral/written, inc conduct. Confession may be wholly/partly adverse to maker = “mixed statements” = confession.

Question 7

How to exclude a confession for:

exclusion for oppression?

Answer 7

torture, threat of violence, degrading treatment = given natural meaning. Exercise of authority in burdensome, harsh or wrongful manner”. Oppression almost inevitably involves impropriety. Degree of impropriety may serve to support app under s76(2)(b) or s78 PACE. Nature of oppression varies depending on chara + attributes of D.

Question 8

How to exclude a confession?

Exclusion for unreliability

Answer 8

judge MUST consider hypothetical question: whether confession made in consequence of what was said/done likely be rendered unreliable.

MUST consider what happened + ignore evid suggesting confession = reliable.

Must consider anything said or done.

Question 9

Confession CANNOT be held inadmissible under s76(2)(b) by reason only

Answer 9

of something said/done by D himself.

S76(2)(b) = causal link what said/done + confession.

Breach of PACE codes not lead to automatic exclusion. Something said/done can include “omission”.

Question 10

How to exclude a confession for:

evidence yielded by inadmissible confession?

Answer 10

s76.

Fact confession = inadmissible DOESN’T affect admissibility of evid of fact discovered as result of confession or showing D speaks, writes, expresses himself in a certain way. Evidence shall not be admissible unless evidence of how discovered is given.

Question 11

What is a voir dire

Answer 11

s76. Fact confession = inadmissible DOESN’T affect admissibility of evid of fact discovered as result of confession or showing D speaks, writes, expresses himself in a certain way. Evidence shall not be admissible unless evidence of how discovered is given.

Question 12

VOIR DIRE =

What is the practice for a voir dire?

Answer 12

1. Def adv notifies pros of objection;
2. Pros refrains from mentioning it in opening
3. Appropriate time = judge conducts voir dire

Question 13

VOIR DIRE =​

Court MUST not allow confession unless

Answer 13

pros prove beyond reasonable doubt. Court may of own motion require pros to prove.

Question 14

Is a voir dire held in front of a jury?

Answer 14

Voir Dire enables issue to be resolved without the jury, with benefit of D’s evidence. S76 require Mags to conduct voir dire. As Mags judges both fact + law, ruling confession excluded means they put objectionable material out of their minds.

Question 15

What is

Voir dire + s78?

Answer 15

court MAY refuse allow pros evidence. Voir dire MAY be held, not always. D has NO RIGHT to voir dire to determine s78. But norm happens.

Question 16

Confession excluded =

Answer 16

Under s114(1)(d) can bring confession in, but not if inadmissible under s76

Question 17

what is s76 PACE for?:

Answer 17

S76 PACE CONFESSION = Where pros propose to give confession in evid made by D, + represented that confession was/may have been obtained:

1. By oppression; or
2. Result of something said/done likely to render confession unreliable

Court MUST NOT allow confession unless pros proves beyond reasonable doubt confession not obtained that way.

Question 18

Court must not allow confession where:

Answer 18

confession was/may have been obtained:

1. By oppression; or
2. Result of something said/done likely to render confession unreliable

Question 19

Court MAY of own motion require pros to prove it. Pros don’t prove admissibility unless:

Answer 19

1. Def “represents” inadmissible under s76(2); or
2. Court of own motion requires proof of admissibility

If pros unable to prove beyond reasonable doubt = confession MUST be excluded. NO discretion.

Question 20

What is s78 PACE?

Answer 20

Court MAY refuse allow evid which pros proposes if: admissible -) adverse effect on fairness that court not admit it.

Question 21

S78 PACE

CA wont interfere with exercise of judge’s discretion unless:

Answer 21

satisfied decision = perverse, Breach of PACE codes NOT = automatic exclusion of confession. MUST causal link breaches + admission.

Question 22

s78 PACE

Task of court IS:

Answer 22

consider if adverse effect that justice requires evid = excluded. Right to legal advice = fundamental, except in exceptional circs, pros cannot rely on anything said by D without legal advice.

Question 23

s78 PACE

Breaches:

Answer 23

Breach interview procedures = Interviews should be recorded + D has opp to contest recording.

NOT function of s78 PACE to disciple the police.

Issue of unfairness MAY be raised by D, not evid pros have adduced, but propose to rely.

Breach of ECHR, PACE Codes not necessarily result in exclusion. Significant + substantial breaches in PACE Codes MAY result in exclusion. TEST: not seriousness of breach, but unfairness.

Question 24

Admissibility evidence unlawfully, improperly obtained =

what happened:

Answer 24

Court MAY stay proceedings. If no stay, evidence obtained unlawfully, improperly or unfairly = admissible. Evid obtained by torture = inadmissible.

Question 25

Common law discretion to exclude: TEST:

Answer 25

: judge MAY exclude otherwise admissible pros evidence if “its prejudicial effect on minds of jury outweigh true probative value”. Common law exclusion of confession where:

1. Unreliable confession – prejudicial effect outweigh their true probative value; and
2. Admission might operate unfairly against D.

This will ONLY be used where: confession admitted in evidence suggesting it shouldn’t have been. Neither s76 nor s78 applies here. No discretion to refuse admit relevant evid on grounds -) obtained by improper/unfair means.

Question 26

Significant + substantial breaches of PACE

TEST:

Answer 26

TEST: not seriousness of breach, but extent of unfairness. For s78 PACE.

= MAY result -) exclusion of evidence, even if absence bad faith.

Question 27

Common law discretion to exclude: TEST:

Answer 27

judge MAY exclude otherwise admissible pros evidence if “its prejudicial effect on minds of jury outweigh true probative value”.

Question 28

Common law discretion to exclude:

Answer 28

Common law exclusion of confession where:

1. Unreliable confession – prejudicial effect outweigh their true probative value; and
2. Admission might operate unfairly against D.

This will ONLY be used where: confession admitted in evidence suggesting it shouldn’t have been. Neither s76 nor s78 applies here. No discretion to refuse admit relevant evid on grounds -) obtained by improper/unfair means.

Question 29

HEARINGS ON VOIR DIRE = Court determines disputed prelim facts. Trials on indictment = matters which MAY fall to be determined in voir dire hearing =

Answer 29

1. Competence of W;
2. Admissibility of confession or hearsay
3. Admissibility of recording
4. Admissibility statement in doc; and
5. Admissibility of pleas of guilty who changes his mind.

Question 30

App to Summary trial = Mags are judges of fact + law.

Where D makes sub that Mags should exclude under s78

ENTITLED TO VOIR DIRE HEARING?

Answer 30

NOT entitled to have voir dire hearing.

It MAY be appropriate where limited issues. If justices exclude it, they then consider if substantive hearing should be conducted by differently constituted bench.

Question 31

what if there are objections to prosecution evidence?

Answer 31

Where D objects to pros evidence in Mags = problem Mags both fact + law judges. Mitigate = availability of pre-trial rulings.

Under s76 PACE – court MUST hear evidence of obtaining of confession, under s78 PACE, court not obliged to hear evidence on admissibility.