16. Confessions and unlawfully or unfairly obtained evidence Flashcards
definition of a confession?
statement wholly or partly adverse to the person who made it whether made to a person in authority or not and whether made in words or otherwise.
what is the general rule regarding confessions?
admissible as long as relevant to issue in proceedings
admissibility of confessions operates in favour of…
prosecution and co-accused
when can a retracted G plea be relied on?
by co-accused
by prosecution however can be revoked under s.78
whether a statement is adverse depends on…
what the issue in the case is
test for exclusion of confessions is…
under s.76 PACE.
if confession was or may have been obtained
* by oppression or
* as consequence of anything said or done likely to render confession **unreliable **
then the court SHALL NOT ALLOW confession to be evidence unless proved BYRD that confession was not obtained that way
when will the pros have to prove the admissibility of a confession?
defence represents that it is inadmissible or
court of own motion requires proof of admiss
is the exclusion under s.76 discretionary?
no - must be excluded if pros cannot prove BYRD
definition of oppression?
includes - torture, inhuman or degrading treatment and use of threat or violence
exercise of power oin burdensome, harsh or wrongful manner.
relevance of character of accused to oppression?
oppression varies according to character and attributes of accused (professional criminal - more vigorous interrogation).
anything said or done - judge to consider…
everything said or done. includes all surrounding circs even if police did not behave improperly.
breach of PACE codes - exclusion of confessions
breach not automatic exclusion but
can show that “anything said or done” test is satisfied
what evidence can be excluded by s.78?
evidence on which pros propose to rely
test for exclusion s.78?
having regard to all circs, admission would have such an adverse affect on fairness of proceedings that court could not admit it
who bears burden under s.78?
accused to persuade on balance of probs that evidence should be excluded.
breach of PACE codes and s.78?
breach of code not automatic exclusion
task of court when considering adverse effect?
consider whether there would be an adverse effect on the fairness of the proceedings, but such an adverse effect that justice requires the evidence to be excluded.
nature and extent of breach of PACE codes s.78?
significant and substantial breach = standards of fairness set by parliament not met - still not auto exclusion
effect of breach of right to legal advice s.78?
breach = fundamental.
unless compelling and exceptional reasons, pros cannot lead and rely on evidence of anything said by accused without legal advice.
examples of interview breaches that warrant exclusion (s.78)?
- cautioning
- interpreter
- right to have AA
- right to know why arrested
- inadequate recording
how does bad faith affect s.78 exclusion?
where police acted in bad faith, may make exclusion more likely.
practice of challenging s.76 admiss?
- defence notifies pros of objection
- pros refrain from mentioning statement
- at appropriate time, judge would conduct trial on Voir Dire to decided admiss
general rule - admissibility of evidence obtained unlawfully, improperly or unfairly?
where ev obtained illegally - court can exercise power to stay proceedings
effect of s.76 on evidence yielded by inadmiss confession?
fact that confession excluded does not affect admiss :
* of facts discovered as a result or
* if confession to show they speak/wrote in certain way - part of confession necessary to show this
voir dire and s.78 procedure?
- defence objections made before ev given
if evidence is relevant - are court concerned with how it was obtained?
no - therefore, evidence obtained in following ways is admiss:
- theft
- unlawful search of persons/premises
- eavesdropping
- invasion of privacy
general rule of admissibility of evidence?
admissible if it is relevant to matters in issue.
common law test for exclusion of evidence?
prejudicial effect outweights probative value
can s.78 be used to exclude evidence on basis of how it was obtained?
yes
whether a breach is significant / substantial depends on…
question of fact and degree
when is common law likely to be used over s.78?
where evidence has already been admitted in evidence
what is required for an exclusion under s.78?
evidence has to operate unfairly against the accused
examples of significant and substantial breaches (s.78)
- fail to caution
- fail to record interview
- fail to remind of right to legal advice
- failure to let accused check statement
- failure in video ID to use people of sufficient resemblance
- improper street ID
test is not of seriousness of breach but it is extent of unfairness caused thereby
who can make application to exclude under s.78?
may be raised by defence counsel against whom evidence can be used.
can judge reconsider decision to exclude under s.78?
yes, if balance of fairness shifts, court has discretion to reconsider the ruling and admit evidence
what is a voir dire?
trial within a trial
1.
what is procedure for voir dire?
- court determines disputed prelim facts
- evidence is used to prove / argue admissibility
generally can mags have voir dire?
no, because the function of the voir dire is to allow the tribunal of law to decide a point of law in the absence of the tribunal of fact
when can MC hold voir dire?
if before close of pros case, defence challenge admiss of confession, mags are bound to hold Voir dire
when do the MC have to deal with s.78 applications?
either when it arises or at the end of the hearing - usually best to hear all of pros case before deciding.
objections to pros evidence (s.78) - procedure in summary trial?
Mags have discretion as to when they decide it.
HOWEVER,
delaying confession decision until after pros may be unfair to defence
defence should know whether crucial evidence is to be part of the case against the accused
do the MC have to hear evidence to decide admissibility?
under s.76 yes they must
under s.78 they have discretion
