16. Confessions and unlawfully or unfairly obtained evidence Flashcards
What is a confession under PACE?
A confession for pace is “any statement wholly or party adverse to the to the person who made it, whether made to a person in authority or not and whether made in words or otherwise”.
Confession covers statements such as an informal admission to a friend or colleague.
Only a confession made by an accused may be given in evidence against him.
A plea of guilty constitutes a confession. Where a plea has been restracted, the court may decide that it should not be given in evidence as it would give an adverse affect on the fairness of the proceedings, invoking s78. A retracted plea of guilty may also, where relevant, be relied upon as a confession by co-accused as s78 does not cover this.
An admission made in other proceedings would also constitute a confession so long as it complies s76 and is not excluded under s78.
A plea in mitigation after conviction where the accused pleaded not guilty is not a confession.
Confessions are generally admissible
What is a ‘statement’ for the purposes of a confession under PACE?
Could be oral, written, or by conduct. So too would a re-enactment or visual demonstration.
Conduct which is not intended to convey guilty but is interpreted as doing so is not a ‘statement’ and not a confession (I.e. like driving away when stopped).
Is a statement partly adverse and partly exculpatory a confession?
Yes.
What is ‘adverse’ depends on the issue in the case. Where the alleged admissions related to facts that were not in dispute, and the remainder of the statement was purely self-serving, it was not a confession, meaning that it could not be admitted under s76A at the behest of a co-accused.
Not everything stated at the time of a partial admission is necessarily part of a confession.
What does s76 say on admissibility and exclusion of confessions?
A confession made by an accused may be given in evidence against him insofar as it is relevant to any matter in issue in the proceedings and is not excluded by the court under s76.
If, in proceedings in which the prosecution intend to rely on a confession, it is represented that the confession was or may have been obtained –
by the oppression of the person who made it
OR
in consequence of anything said or done at the time was likely, in those circumstances, to render unreliable any confession which may be made by him in consequence thereof,
the court shall not allow the confession to be given in evidence against him except insofar as the prosecution proves to the court beyond reasonable doubt that the confession was not obtained as aforesaid.
The court of its own motion may require the prosecution to prove the confession was not obtained as above as a condition of admissibility.
The prosecution do not have to prove the admissibility of a confession upon which they rely unless either (a) the defence ‘represents’ that it is inadmissible under s. 76(2), or (b) the court of its own motion requires proof of admissibility under s. 76(3).
If in either case the prosecution cannot prove admissibility beyond reasonable doubt, the confession must be excluded, notwithstanding that it may be true: the court has no discretion in the matter.
A confession may be excluded in part.
Any confession likely to be inadmissible should not be used as the basis for a caution.
What is ‘oppression’ for the purposes of s76?
‘Oppression’ is to be given its ordinary dictionary meaning’ of: ‘exercise of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of subjects, inferiors e.c.t., the imposition of unreasonable or unjust burdens.
Not all impropriety is oppression as ‘there is not a word in our language that expresses more detestable wickedness than oppression’ so a breach of PACE is not necessarily oppression.
A police officer raising his voice and using bad language when losing patience is not oppressive, though unduly hostile questioning may be.
Anything amounting to torture, inhuman or degrading treatment, and the use or threat of violence.
The reference to ‘torture’ may be interpreted in the light of the offence of torture in CJA 1988 S134.
Torture inhuman or degrading treatment may also be referred to case law under the ECHR.
Anything which may have been treated as oppression pre-pace may now be treated under the wider ‘unreliable’ head.
The nature of oppression may vary according to the character and attributes of the accused (a hardened criminal can expect a vigorous interrogation).
If there is impropriety that does not rise to the level of oppression, may any confession obtained as a result be excluded?
Perhaps, under s76(2)(b) or s78.
Police witnesses might be cross-examined as to whether they were part of a culture of pressurising witnesses improperly.
In Miller [1986] 3 All ER 119 Watkins LJ said that it might be oppressive to put questions to an accused who is known to be mentally ill so as ‘skilfully and deliberately’ to induce a delusionary state
What is exclusion for unreliability?
“Whether any confession which the accused might make in consequence of what was said or done was likely to be rendered unreliable.”
Thus the court must consider whether what happened was likely in the circumstances to induce an unreliable confession to the offence in question, and to ignore any evidence suggesting that the actual confession was reliable.
The criminal law revision committee proposed that a confession should not be simply excluded on the basis that it was obtained in consequence of a threat or inducement, unless the circumstances were such that any resulting confession would likely be unreliable.
This proposal became PACE s76(2)(b).
This section asks the above hypothetical question
Although the judge may not be influenced by evidence that the confession is true in deciding admissibility, there is no rule against taking into account any other relevant evidence given at trial before the voir dire begins which assists in determining the questions posed by s. 76(2)(b). Such evidence must, however, relate to the period before, or at the time when, the confession is made: the judge must ‘stop the clock’ and consider the issue of reliability at that point in time
What is ‘anything said or done’ under section 76 of PACE?
Considering everything said or done and the circumstances surrounding it. Thus, even if the police have not behaved improperly, the circumstances may indicate that a confession should be inadmissible.
See Harvey [1988] Crim LR 241, in which a psychopathically disordered woman of low normal intelligence heard her lover confess to a murder. As this experience may have led her to make a false confession out of a child-like desire to protect her lover, her statement was excluded under s. 76(2)(b).
A confession cannot be rendered inadmissible by reason of only something said or done by the accused as the provision looks for only the external.
The CoA did consider that the taking of drugs by D may be relevant as it is a ‘circumstance’.
Self-induced incapacity is clearly relevant for s78.
A breach of PACE codes does not lead to automatic exclusion of a confession obtained, thought it may provide evidence that s76 has not been complied with. Something said or done may consist of an omission to fulfil the requirements of the Code, though it will likely be explained in a more positive way (i.e. interviewed without administering caution).
What does s78 of PACE say on exclusion of evidence?
In any proceedings the court may refuse to allow evidence the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
The court of appeal will not interfere with an exercise of discretion under s76 unless it is satisfied that the decision is perverse.
The accused has the burden of persuading the court that it should exercise its power under s78 and the burden is no higher than the balance of probabilities. Where there is no issue of fact, the question of fairness does not seem to be susceptible of analysis in terms of burden of proof
What role does a breach of the PACE codes have for s78 applications?
Codes of practice under PACE are admissible and should be taken into account where it appears relevant to any question arising. Breach of a pace code does not lead to the automatic exclusion of a confession. The question is whether the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. Even a plain and admitted breach may fail to trigger exclusion if it does not operate in a way prejudicial to an accused.
In many cases, a breach is an important factor. Equally, there may also be a breach simply under PACE act itself, though there is no guidance as to whether one should differentiate between breaches of the act and of the codes.
Is there general guidance on when confessions may be excluded?
No general guidance but there are some generally important considerations.
How would the nature and extent of breach influence the court when deciding a s78 application?
If there are significant and substantial breaches then the prima facie the standards set by parliament have not been met and so evidence obtained as a result will likely have an adverse effect on the proceedings.
HOWEVER, the question is not merely whether there will be an adverse effect but whether it is such an adverse effect that justice requires the evidence to be excluded.
How would breach of a right to legal advice influence the court when deciding a s78 application?
It is relevant that the right of access to legal advice is ‘fundamental’ and that it is regarded as of great important in the jurisprudence of the ECtHR.
Safety interviews conducted under the Terrorism Act 2000 pose a particular difficulty in regard to Article 6. In Ibrahim v UK [2016] ECHR 750, the Grand Chamber of the ECtHR refused to draw a ‘bright-line rule’ prohibiting the use at trial of statements obtained during police questioning from which legal representatives had been excluded, and upheld the previous decision of the ECtHR ((2015) 61 EHRR 9) that the use of safety interviews, conducted with three suspected bombers who were denied access to legal advice, was justifiable in light of the ‘exceptionally serious and imminent threat to public safety’ prevailing immediately after the London bombings of 2005.
The key questions are:
1. Whether there existed compelling reasons for the restriction of access to a lawyer and
2. Whether, viewing the proceedings as a whole, the trial was fair.
The extent to which ‘compelling reasons’ were lacking would ‘weigh heavily’ in the balance in favour of finding a violation of the ECHR, Article 6, but their absence was not, by itself, sufficient to amount to such a violation. It was also relevant that the defendants had the opportunity to challenge the evidence at trial, that the jury was fully and fairly instructed about its use, and that there was a wealth of other prosecution evidence.
In relation to a fourth applicant, who had been questioned as a witness and had not been cautioned at the appropriate stage, despite being under suspicion, the Grand Chamber held that the UK government had failed to demonstrate compelling reasons for the delay of access to legal advice and notification of the right to remain silent, and had failed to demonstrate that the overall fairness of the trial was not irretrievably prejudiced by the procedural failings.
Where legal advice is waived, the waiver should be voluntary, informed, and unequivocal.
This requirement might suggest exclusion in cases where the right to advice, for whatever reason, has not been fully presented to the accused. Minor defects in the communication of the right to legal advice that do not bear on the exercise of informed choice by the suspect cannot give rise to unfairness.
How would the breach of interview procedures influence the court when deciding a s78 application?
Tend to lead to exclusion of evidence.
Said to be desirable that the provision of Code C which are designed to ensure that interviews are fully recorded and the suspect afforded an opportunity to contest the record be ‘strictly complied with’, and that the courts would not be slow to exclude evidence obtained following ‘substantial breaches’ by the interrogator.
Other provisions which have been held as capable or requiring or contributing to exclusion are those relating to cautioning, breach of the right to an appropriate adult (which may also lead to, where an appropriate adult would be needed to ensure the accused knows the importance of legal advice, any waiver of legal advice being null and void), the right of the accused to know why he has been arrested and ‘at least in general terms the level of the offence in respect of which he is suspected (as they may view the need for legal advice in light of those matters and what he should say in response), and not being informed of the reasons for arrest promptly.
The failure of the interrogator to appreciate that questioning a suspect amounts to an ‘interview’ has proved an important peg on which to hang arguments for exclusion, as such failure leads to a multiplicity of relevant breaches of Code C.
In Hawkins [2005] EWCA Crim 1723, a police officer unfamiliar with health and safety legislation spoke to D about an explosion in which D had been burned and another man killed. D was, at the time, in shock and breathing with the assistance of an oxygen mask, having been given the maximum possible dose of morphine. The officer’s failure to realise that D was a suspect rather than a mere witness was immaterial: a view to that effect should have been formed, the interview should not have taken place as it did, and the fruits of the interview should have been excluded.
What breaches may not lead to exclusion under s78?
Breaches which are insufficiently significant or substantial to trigger s78 or, if the breach is not technical, there is no unfairness resulting from the breach.
