4 - Evidence Flashcards
What are ‘facts in issue’ and how are they relevant to why evidence is called?
- Evidence is called to prove the ‘facts in issue.’
- Facts in issue are the facts that a party must prove to support its case. It can be used by either party.
- For the prosecution, facts in issue include elements needed to prove the offence (e.g., for theft, the prosecution must prove appropriation, property belonging to another, dishonesty, and intent to permanently deprive).
- Courts aim to narrow issues by confirming which elements the defence agrees on, allowing proof by other means than calling live evidence.
What are the ways to prove a fact without calling live evidence?
- Agreeing a witness statement as true under the Criminal Justice Act 1967, s.9.
- Agreeing any fact between the parties under the Criminal Justice Act 1967, s.10.
- Taking ‘judicial notice’ of facts that are generally known or can be verified easily.
How does agreeing a witness statement as true by consent of the parties work?
Under Criminal Justice Act 1967, s.9, a witness’s statement can be agreed as accurate in written form.
- The statement is read out and has the same weight as if the witness gave the evidence in person from the witness box.
- Such evidence is only agreed if it is not disputed. If challenged, the witness must attend court and give oral evidence, so that the dispute can be heard and assessed openly by the court.
How can parties agree on a fact during a trial?
Under Criminal Justice Act 1967, s.10, advocates can agree on any fact in the case.
- The agreed fact is reduced to writing and signed by both parties (the lawyers, not the witnesses).
- For example, if a defendant is found with someone else’s credit card, the prosecution would need to prove that the defendant had no permission to use it. Instead of calling a witness, both parties may agree that the defendant had no such permission, allowing the trial to focus on other contested issues.
What is judicial notice and how is it used in court when looking at evidence?
Judicial notice allows a judge or jury to accept facts that are widely known without requiring formal proof.
For example, courts do not need to prove facts like traffic conditions in city centres at rush hour, as they are universally known.
Judges can take judicial notice ‘on enquiry’, meaning they may verify facts easily from reliable sources if needed (e.g., determining which counties border Staffordshire).
Jurors are not allowed to conduct their own research, and they must disclose any personal knowledge of relevant facts to the court.
What are the different types of evidence that can be presented in court?
Evidence can take several forms:
Oral evidence given by a witness in court.
Written evidence, including:
- Agreed statements under s.9 CJA 1967.
- Admitted facts under s.10 CJA 1967.
Real evidence: physical objects or documents presented for inspection.
Direct evidence: testimony from a witness who directly experienced the event.
Circumstantial evidence: evidence from which facts are inferred.
A view: where the jury or court visits the scene of the crime or views an object outside the courtroom.
What is real evidence, direct evidence, circumstantial evidence, and a view?
Real evidence: Objects or things brought to court for inspection, such as documents presented by a witness who can verify their origin.
Direct evidence: Evidence where a witness testifies about their direct experience of a fact in issue.
Circumstantial evidence: Evidence from which a fact is inferred, such as finding a train ticket in the defendant’s pocket showing they were at a station at a certain time.
A view: The jury or court may visit a crime scene or inspect an object that cannot be brought into court, and their observations during this visit become part of the evidence.
What is the relationship between admissibility, relevance, and weight of evidence?
Evidence must be relevant to be admissible. Relevance is the first and most fundamental principle of evidence.
Evidence is relevant if it is ‘logically probative’ of a fact in issue, meaning it tends to prove or disprove a fact.
If irrelevant, the evidence is inadmissible. If relevant, it can be admitted, but the jury or judge must determine its weight—how reliable, strong, and valuable it is.
For example - In R v Usayi, the defence sought to introduce a note suggesting that the complainant had previously lied about her mother’s death, arguing it showed dishonesty.
The Court of Appeal ruled that this evidence had insufficient relevance to the issues in the case and should not have been admitted, despite arguments over hearsay.
What are exclusionary rules and when do they apply?
Exclusionary rules prevent the admission of evidence that, while relevant, may affect the fairness of the trial.
For example, if police obtain evidence through illegal methods (e.g., an illegal phone tap), the courts might exclude the evidence to protect the fairness of the proceedings.
The decision to apply an exclusionary rule ensures that trials remain just and equitable, even if it means disregarding relevant evidence.
What is the concept of ‘weight’ in relation to evidence and who decides it?
- The ‘weight’ of evidence refers to its reliability, strength, and value.
- Determining the weight of evidence is the responsibility of the jury.
- Judges may intervene and exclude evidence if it is deemed too unreliable, such as testimony from a highly unreliable witness (e.g., a drunken person who only briefly witnessed an event).
What are tribunals of fact and law, and what roles do they serve?
Tribunal of fact: Determines the facts of the case. In the Crown Court, the jury serves this role. In the Magistrates’ Court, the tribunal of fact is the magistrates or District Judge.
Tribunal of law: Determines legal issues, such as admissibility of evidence. In the Crown Court, the judge is the tribunal of law, while in the Magistrates’ Court, the magistrates or District Judge perform this role.
While the tribunal of fact determines the facts, the tribunal of law handles legal decisions during the trial.
How do tribunals of fact and law function differently in Crown Court and Magistrates’ Court?
In the Crown Court, the roles of the tribunal of fact (jury) and the tribunal of law (judge) are separate.
In the Magistrates’ Court, both roles are combined in the same person or group (magistrates/District Judge).
A practical example: In the Crown Court, if the judge rules evidence (e.g., a confession) inadmissible, the jury will never hear about it. In the Magistrates’ Court, the same bench that rules on the admissibility of a confession will also decide on the facts, requiring them to ignore inadmissible evidence in their final judgment.
This distinction often leads defendants to prefer trial in the Crown Court.
How does s.78 PACE relate to courts refusing to admit the prosecution’s evidence, and what is its significance?
s.78 PACE: This section allows courts to refuse to admit prosecution evidence if doing so would have an adverse effect on the fairness of proceedings.
It applies where evidence has not been collected or gathered in compliance with PACE procedures.
s.78(1) PACE states: ‘In any proceedings the court may refuse to allow evidence on which 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.’
How does s.78 PACE relate to wrongly obtained evidence?
s.78 PACE can be invoked even if the evidence appears to comply with PACE, as the section focuses on how the evidence was obtained.
Examples of wrongly obtained evidence include:
- Searches without proper authority.
- Interviewing witnesses without properly cautioning them.
- Denying access to a solicitor.
- Oppression or trickery during interviews.
- Failing to follow procedures in identification cases.
The court looks at whether the evidence was obtained in a manner that affects the fairness of the proceedings.
What are the principal ways of excluding evidence or seeking to stop a case in a criminal trial?
- Applications for dismissal;
- Submissions of no case to answer;
- Applications to exclude evidence under s.78 of the Police and Criminal Evidence Act 1984 (PACE);
- Applications to exclude confessions under s.76 PACE;
- Applications to exclude evidence under the preserved common law provisions – s.82(3) PACE;
- Abuse of process applications.
What is an application for dismissal, and when can it be made?
A pre-trial application to have charges against a defendant dismissed.
Can only be made:
- After the defendant is sent by the magistrates’ court for trial to the Crown Court;
- After the defendant has been served with the evidence relating to the offence; and
- Before the defendant is arraigned (offence is put to the defendant, and the defendant pleads guilty or not guilty).
The power to make the application is found in Schedule 3 of the Crime and Disorder Act (CDA) 1998, with the procedure set out in CrimPR r.9.16.
The application is made to a Crown Court Judge. If the defendant wishes to make an oral application, they must give written notice of their intention to do so.
What is the test for dismissing a charge in an application for dismissal?
The test is set out in Schedule 3 para 2(2) CDA: “The judge shall dismiss a charge (and accordingly quash any count relating to it in any indictment …) if it appears to him that the evidence against the applicant would not be sufficient for him to be properly convicted.”
This test aligns with the test applied in submissions of no case to answer, as set out in R v Galbraith [1981] 73 Cr App R 124.
A judge should stop the case where:
- There is no evidence that the crime was committed by the defendant; or
- The prosecution evidence, taken at its highest, is such that a properly directed jury could not properly convict on it.
What is a submission of no case to answer?
A defence submission, made after the prosecution has presented all its evidence, arguing there is no case to answer on one or all charges.
Can be made in both the magistrates’ court and the Crown Court.
Governed by the principles set out in R v Galbraith [1981] 73 Cr App R 124:
- If there is no evidence that the crime alleged has been committed by the defendant, the judge will stop the case.
- Where there is some evidence but it is tenuous, the judge should stop the case if the prosecution evidence, taken at its highest, is such that a properly directed jury could not properly convict on it.
- Where the strength or weakness of evidence depends on witness credibility or other matters for the jury’s consideration, the judge should allow the case to be tried.
What is the procedure for submissions of no case to answer?
The application is made at the close of the prosecution’s case, often referred to as a ‘half-time submission.’
In the Crown Court, the application takes place in the absence of the jury. If successful, the judge will instruct the jury to return a not guilty verdict on the relevant counts.
If unsuccessful, the jury will not be informed that the application was made.
Governed by CrimPR r.24.3(3)(d) in the magistrates’ court and CrimPR r.25.9(2)(e) in the Crown Court. Both rules state that:
- The court may acquit if the prosecution evidence is insufficient for any reasonable court to convict; but
- The prosecution must be given the right to respond to the application.
What is a Section 78 application under the Police and Criminal Evidence Act (PACE) 1984, regarding the defence’s ability to apply to exclude prosection evidence?
Section 78 allows the defence to apply to exclude prosecution evidence where its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
Section 78 applies only to evidence on which the prosecution proposes to rely.
It cannot be used by the prosecution or a co-defendant to exclude evidence that a defendant seeks to admit.
What is an abuse of process application, and when is it used?
Sometimes there is an issue of unfairness or impropriety so fundamental that for the trial to continue would be an abuse of the process of the court.
An application made by the defence to stay proceedings as an abuse of the court’s process, which stops the case from continuing.
It is used when:
- The accused can no longer receive a fair hearing; or
- It would be unfair to try the accused, or a stay is necessary to protect the integrity of the criminal justice system.
Abuse of process goes beyond excluding evidence and questions whether the case should be allowed to continue at all.
What are examples of circumstances that may justify an abuse of process application?
The defendant was tricked or coerced into committing an offence they would not otherwise have committed.
The defendant is prosecuted despite an unequivocal promise by the prosecution that they would not be.
Police actions undermine public confidence in the justice system, e.g., by deliberately destroying evidence that would assist the defence.
The prosecution misuses the court process, depriving the defendant of legal protections.
Deliberate or inordinate delay by the prosecution that prejudices the defence.
What is the common law discretion to exclude evidence, and how does it relate to PACE?
Section 82(3) of PACE preserves the common law discretion to exclude evidence where its prejudicial effect outweighs its probative value, ensuring a fair trial.
This discretion applies only to prosecution evidence and cannot be used to exclude evidence a defendant seeks to admit.
Common law discretion is of limited relevance due to the statutory powers to exclude evidence under s.78 and s.76 PACE.
Provide a summary of the main methods to exclude evidence or stop a case.
The main methods to exclude evidence or stop a case are:
Application for dismissal- For cases sent to Crown Court. A pre-trial application made after evidence is served and before arraignment. Same test as submission of no case to answer (Galbraith).
Submission of no case to answer- Only available during trial at the close of the prosecution case Galbraith test.
Application under s.78 Police and Criminal Evidence Act 1984 (PACE)- The main provision used for excluding evidence. May be used only to exclude prosecution evidence.
Application to exclude a confession- s.76 PACE. The main provision for excluding confessions. Often used in conjunction with s.78 PACE.
Application to exclude evidence under the common law- s.82(3) PACE. May be used only to exclude prosecution evidence.
Abuse of process application- An application to stay the indictment where either (1) the defendant cannot have a fair trial; or (2) continuing the prosecution offends the court’s sense of justice and propriety or would undermine public confidence in the criminal justice system and bring it into disrepute.
What do Section 78 PACE applications deal with?
- Section 78 PACE applications deal with the exclusion of prosecution evidence in criminal cases.
- The court can refuse to admit evidence if its admission would have an adverse effect on the fairness of the proceedings.
- The exclusion is based on the fairness principle, ensuring that evidence is not admitted if it would lead to unfairness, even if the evidence was obtained improperly or unlawfully.
- This often includes evidence obtained in breach of the European Convention on Human Rights, PACE, or its Codes of Practice.
Key Example: Excluding confession evidence obtained unfairly, possibly in conjunction with s.76 PACE.
What are the principal ways of excluding evidence or stopping a prosecution?
The main ways to exclude evidence or halt a prosecution include:
- Applications for dismissal
- Submissions of no case to answer
- Applications under s.78 PACE to exclude unfair evidence
- Applications under s.76 PACE to exclude confessions
- Common law applications under s.82(3) PACE to exclude evidence
- Abuse of process applications
Key Example: An abuse of process application might be made where continuing the case would be unjust or unlawful.
What does Section 78 PACE focus on and aim to achieve?
Section 78 focuses on ensuring fairness in the admission of prosecution evidence.
Courts may exclude evidence if its admission would adversely affect the fairness of the proceedings.
It applies only to prosecution evidence and is often invoked when evidence has been obtained unlawfully or unfairly.
Key Case Example: R v Quinn [1990] where Lord Lane CJ emphasised that unfairness occurs when one side cannot properly challenge the evidence.
What is the test for excluding evidence under Section 78 PACE?
The court must assess whether admitting the evidence would have such an adverse effect on the fairness of proceedings that it should be excluded.
It does not aim to punish the prosecution or police for their conduct but is focused purely on fairness.
Key Example: If the police acted in bad faith, this may lead to the exclusion of evidence due to unfairness.
What are the PACE Codes of Practice, and how do they relate to Section 78 applications?
The PACE Codes of Practice outline the procedures the police must follow.
Breaches of these codes often form the basis for applications under s.78 PACE to exclude evidence.
The Codes cover areas like stop and search, arrest, detention, and interviewing suspects.
Key Example: If evidence is obtained in breach of Code C (e.g., failure to caution a suspect), it may lead to exclusion under s.78.
What are the 8 PACE Codes of Practice?
The 8 PACE Codes of Practice are:
Code A – Stop and Search
Code B – Entry, Search, and Seizure
Code C – Detention, Treatment, and Questioning of Non-Terrorist Suspects
Code D – Identification
Code E – Audio Recordings of Interviews
Code F – Visual Recording of Interviews with Sound
Code G – Arrest
Code H – Detention, Treatment, and Questioning of Terrorism Suspects
Key Example: Breaches of Code C, concerning treatment during detention, often feature in s.78 applications.
What does Code C of the PACE Codes of Practice cover?
Code C governs the detention, treatment, and questioning of non-terrorist suspects by police officers.
Key provisions include:
- Right to consult a solicitor
- Right to have someone informed of the arrest
- Requirement to caution before questioning
- Juveniles and vulnerable persons must have an appropriate adult present during interviews.
Example: Failure to provide a caution or the absence of an appropriate adult can result in a s.78 application to exclude evidence.
What is an example of a breach of Code C leading to a Section 78 application?
If a defendant admits to shoplifting without being cautioned before questioning, this is a breach of Code C.
Paragraphs 10.1 and 11.1 require a caution and that the interview should take place at a police station.
Example: The defence could argue for exclusion of the confession under s.78 on the basis that these breaches denied the defendant critical safeguards.
What are common examples of Section 78 applications?
Section 78 has been used to exclude evidence in cases such as:
- Denial of the right to legal advice
- Non-voluntary waiver of legal advice
- Failure to caution before questioning
- Failure to provide an appropriate adult for vulnerable suspects
- Breaches of identification procedures
Example: Failure to provide legal advice can lead to exclusion of evidence due to the adverse effect on fairness.
What is meant by ‘significant and substantial breaches of the PACE codes’?
- Breaches that are considered significant and substantial can lead to exclusion of evidence under s.78.
- The seriousness of the breach itself is less important than the adverse effect on the fairness of the proceedings.
Key Case Example: R v Keenan stressed that only significant and substantial breaches justify exclusion of evidence.
What happens when there are significant or substantial breaches of the PACE Codes?
Significant and substantial breaches of PACE Codes can result in exclusion under s.78 if the court finds the admission of evidence would cause unfairness.
Key Example: R v Roberts suggested the trial judge has discretion in determining the fairness of proceedings and whether evidence should be excluded.
When can a Section 78 PACE application be made?
Section 78 applications can be made:
- Before the trial
- At the start of the trial
- Before the prosecution introduces the evidence in question
Key Point: If the application would fatally weaken the prosecution’s case, it is often heard pre-trial, especially in the Crown Court.
What should the defence do if a point of law becomes clear from the case papers or initial disclosure after a s.78 application?
Where a point of law is clear from the case papers or arises following initial disclosure, the defence should include it in the Defence Statement.
The Defence Statement should also reference any legal authorities relied upon (as per s.6A(1)(d) of the Criminal Procedure and Investigations Act (CPIA) 1996).
In practice, the defence representative will often draft a skeleton argument to support D’s application.
The prosecution will typically respond with a skeleton argument opposing the application.
In the Crown Court, the judge will issue directions regarding when the s.78 application will be heard, usually at the Plea and Trial Preparation Hearings (PTPH).
Similar directions are given in the magistrates’ court during case management.
What is a voir dire in relation to Section 78 PACE applications?
- A voir dire is a mini-trial to resolve factual disputes related to a s.78 application.
- It is held when there is disagreement over the facts between the defence and prosecution, often relating to police conduct.
Example: If the police deny breaching PACE, a voir dire is used to establish the facts before ruling on the legal argument.
The burden and standard of proof in criminal cases apply, meaning the judge must be satisfied of the prosecution’s version of the facts beyond a reasonable doubt to find in their favour.
The judge will then decide how the law applies based on the factual determination.
If the judge concludes that the police acted appropriately, the legal argument will fail.
If the judge concludes that the police significantly and substantially breached the code, resulting in unfairness to the defendant, the evidence in question is likely to be excluded.
How does a voir dire proceed in the Crown Court and magistrates’ court?
In the Crown Court, a voir dire takes place in the absence of the jury because it is a legal argument.
Witnesses testify in the voir dire under a special form of oath/affirmation stating, “that I will true answer make to all such questions as the court shall demand of me.”
The evidence presented by both the prosecution and defence will relate only to the matters in dispute.
In the magistrates’ court, since the magistrates act as both the tribunal of fact and law, they can either rule on the s.78 application immediately when it arises or hear all the evidence (including disputed evidence) before making a ruling on admissibility.
It is crucial that, in the interests of justice, a ruling on admissibility is made early enough to allow the defendant to know whether the disputed evidence forms part of the case.
This is particularly significant where the disputed evidence is a confession, which forms the main evidence against the defendant, as it affects cross-examination, D’s evidence, and potential submissions of no case to answer.
When the application involves both s.76 and s.78 PACE, a voir dire is held as a preliminary issue, especially when the disputed evidence is a confession.
Provide a summary for the applications to exclude evidence under s.78 PACE.
The key test for the court in deciding whether to exclude prosecution evidence under s.78 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. - Although NOTE, simply because evidence has been irregularly obtained in breach of PACE or the codes of practice, do not render it inadmissable per se.
Section 78 only applies to ‘evidence on which the prosecution proposes to rely’ so it cannot be used by the prosecution or a co-defendant to exclude evidence that a defendant seeks to admit, nor can it be used after evidence is adduced.
This could include situations in which evidence was obtained in breach of the European Convention on Human Rights or the provisions of PACE (or the Codes of Practice issued under PACE). The codes are admissible in evidence. Simply because evidence has been irregularly obtained does not per se render it inadmissible.
Directions will be given by the judge as to when a s.78 application will be heard. A s.78 application should be made before the evidence to which objection is taken is adduced. A voir dire will be necessary where there is a dispute on the facts between the defence and the prosecution.
What is a confession?
Defined under s.82(1) of PACE (Police and Criminal Evidence Act 1984).
A confession includes any statement wholly or partly adverse to the person who made it.
It applies whether made to a person in authority or not, and can be made in words or otherwise.
Examples of confessions:
- Unequivocal confessions: Fully inculpatory, e.g., “I did it.”
- Mixed statements: Partly inculpatory and exculpatory, e.g., “I had nothing to do with it but was glad to see the victim die.”
- Non-verbal confessions: A nod, sign, or gesture may suffice.
Excludes wholly exculpatory statements, e.g., “It was nothing to do with me.”
What is the admissibility of confessions under Section 76 PACE?
A confession made by an accused may be given in evidence if relevant to the proceedings and not excluded by the court under s.76.
Grounds for exclusion include:
- Oppression (s.76(2)(a)).
- Unreliability due to things said or done (s.76(2)(b)).
The court may require the prosecution to prove beyond reasonable doubt that the confession was not obtained under either of these grounds.
Exclusion of a confession does not affect the admissibility of:
- Facts discovered as a result of the confession (s.76(4)(a)).
- The accused’s speech, writing, or expressions (s.76(4)(b)).
What are the two main ways to challenge a confession under s.76 PACE?
- Oppression under s.76(2)(a).
- Unreliability due to anything said or done under s.76(2)(b).
The defence must represent that one of these grounds applies, but the court can also require proof under s.76(3) even without a defence challenge.
Limb 1 - What is the test for exclusion for oppression under s.76(2)(a) PACE?
Confessions obtained by oppression must be excluded unless the prosecution proves beyond reasonable doubt that they were not obtained in this way.
If the prosecution cannot prove beyond reasonable doubt that the confession was not obtained by oppression, then the confession must be excluded as inadmissible evidence and this applies even if the confession may have been true.
The judge’s decision, if inadmissability, this does not prevent the defence during the trial seeking to discredit the same evidence by cross-examination and making reference to it in their closing speech, ie that it was obtained by oppression and is therefore unreliable.
How is “oppression” defined under s.76(8) of PACE?
Oppression includes:
- Torture.
- Inhuman or degrading treatment.
- The use or threat of violence (whether or not amounting to torture).
- Covers a wide range of physical and psychological conduct.
R v Fulling (1987): The Court of Appeal held that oppression should be given its ordinary dictionary meaning, which includes:
- The exercise of power in a burdensome, harsh, or wrongful manner.
- Unjust or cruel treatment.
- The imposition of unreasonable or unjust burdens.
The court in R v Fulling emphasised the importance of interpreting oppression in its ordinary sense, ensuring a broad understanding of what constitutes oppressive behaviour.
Limb 2 - What does s.76(2)(b) PACE provide for the exclusion of confessions based on unreliability?
A confession may be excluded if it was, or may have been, obtained in consequence of something said or done that was likely to render it unreliable.
The prosecution must prove beyond reasonable doubt that the confession was not obtained as a result of the thing said or done.
Note:
Unreliability in obtaining a confession can result from various factors, and the prosecution must conclusively demonstrate that the confession was not influenced by any such factors.
Even if the confession seems credible, it can still be excluded if it was obtained in a way likely to affect its reliability.
How should s.76(2)(b) exclusion by way of unreliability cases be approached by the court?
According to R v Barry (1991), the approach involves:
- Identify the thing said or done: Consider all actions or omissions of the police.
- Ask whether it was likely to render a confession unreliable: This is an objective test, considering all the circumstances.
- Ask whether the prosecution has proved beyond reasonable doubt that the confession was not obtained as a result of the thing said or done.
Explain the first step in addressing a s.76(2)(b) challenge.
The first step is to identify the thing said or done that allegedly caused the confession to be unreliable.
Examples include:
- A promise of release for cooperation.
- A threat to arrest the suspect’s family.
- Failing to provide an appropriate adult during the questioning of a young or mentally vulnerable suspect.
Key Points:
Identifying the specific action or statement that may have influenced the confession is crucial to the defence’s challenge.
The examples provided illustrate common instances where confessions may be rendered unreliable due to improper conduct by the authorities.
Explain the second step in a s.76(2)(b) case?
Ask whether there was anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof’
This is an objective test considering all the facts, without regard to whether the actual confession is true or false.
All relevant circumstances surrounding the confession must be taken into account when applying this test
What does unreliable mean in the context of s.76 PACE?
Unreliable” in the context of s.76(2)(b) PACE refers to:
‘ A confession likely to be untrustworthy due to the circumstances under which it was obtained, such as coercion, improper influence, or failure to follow proper procedures.’
The focus is on whether the methods or conduct during the confession could have produced an untrue or misleading statement.
What is the test for unreliability under s.76(2)(b) PACE, and how was it applied in R v Gill?
The test for unreliability requires:
1. Identifying whether any improper actions (such as threats, promises, or lack of procedural safeguards) were likely to render the confession unreliable.
2. Evaluating whether, on an objective basis, those actions could generally lead to an untrustworthy confession.
R v Gill: This case highlighted the importance of reviewing police conduct and the objective likelihood of a confession being influenced.
The test is applied objectively, irrespective of whether the confession is true or false.
What are some examples of unreliable confessions under s.76(2)(b)?
Examples of unreliable confessions include:
- A suspect being promised leniency or release in exchange for cooperation.
- A threat to harm the suspect’s family unless they confess.
- Failure to provide an appropriate adult for a vulnerable suspect during an interrogation.
These actions create a situation where a confession could be made out of fear or false belief, making it unreliable.
What must the court ask in relation to s.76(2)(b) when a confession may be unreliable?
The court must ask whether the prosecution has proved beyond reasonable doubt that the confession was not obtained as a result of the thing said or done.
Once Defence Counsel represents to the court that the confession ‘was or may have been obtained’ by anything said or done that was likely in the circumstances to render any confession unreliable, the court cannot admit the confession as evidence unless the prosecution proves beyond reasonable doubt that the confession was not obtained in consequence of the thing said or done, even if the confession is true.
This is a question of fact for the judge and should be approached in a common-sense way, as stated in Barry [1991] 95 Cr App R 384.
How is evidence and facts discovered as a result of an excluded confession treated under s.76(4) of PACE?
Section 76(4) of PACE states that the exclusion of a confession does not affect the admissibility of:
(a) Any facts discovered as a result of the confession, or
(b) The part of the confession necessary to show how the accused speaks, writes, or expresses themselves.
For example, if a body is located as a result of a confession that is later excluded, the fact of the body’s discovery is still admissible, but the prosecution cannot suggest that the body was found due to something the defendant said.
Section 76(5) further clarifies that evidence of a discovered fact is only admissible if the accused or someone on their behalf provides evidence of how it was discovered.
What does s.76(4)(b) of PACE state about the speech, writing, or expressions of the accused?
Section 76(4)(b) allows the prosecution to use part of an excluded confession to show that the accused speaks, writes, or expresses themselves in a particular way.
In R v Nottle [2004] EWCA Crim 599:
The court held that the prosecution could rely on the way the accused spelt the name ‘Justin’ during an interview, even though the confession itself was excluded. The words were admissible to show how the appellant spelt ‘Justin’ under s.76(4)(b).
The court found no error or unfairness in admitting this evidence, as it was relevant to demonstrate a specific manner of expression rather than the content of the confession itself.
Provide a summary for excluding confessions under s.76.
S.82(1) PACE – ‘”confession”, includes any 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.’
This element considered the main provision through which the admissibility of a confession can be challenged, s.76 PACE. There are two main ways under s.76 to challenge a confession:
- Under s.76(2)(a)- ‘oppression’; or
- Under s.76(2)(b)- ‘anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof’.
Aside from a defence challenge, the court under s.76(3) can require the prosecution to prove that the confession was not obtained as set out in s.76(2)(a) or (b).
Even where a confession is excluded, this does not prevent facts discovered as a result of it being relied upon in evidence (section 76(4)(a)) nor does it prevent the prosecution using part of the confession if necessary to show the speech, writing or expressions of the accused (section 76(4)(b)).
What is the principle behind Section 78 of the Police and Criminal Evidence (PACE) Act 1984 regarding exclusion of evidence?
Under s.78(1), in any proceedings, the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court, having regard to all the circumstances, including the circumstances in which the evidence was obtained, that 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.
s.78(2) states that nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.
Section 78 is concerned with the fundamental concept of fairness and is an important means by which the defence can seek to have prosecution evidence excluded.
How are applications to exclude confessions under s.76 and/or s.78 typically handled?
It is perfectly appropriate and common practice for the defence to seek to exclude evidence of a confession under s.76 and, as an alternative, under s.78.
In Beeres v Crown Prosecution Service [2014], Green J stated that the position under s.78 PACE 1984, which concerns fairness, will not normally differ from that based upon the application to the same facts of s.76 PACE 1984.
However, s.78 can in principle exert a broader protective sweep than s.76, acting as an override protection for a detainee, particularly where broader Article 6 (ECHR) considerations are engaged.
What safeguards does s.78 provide for excluding evidence and protecting fairness?
s.78 is concerned with whether the admission of evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
Even if evidence is irregularly obtained, such as through breaches of the Codes, it is not automatically excluded. The key test is whether fairness dictates exclusion.
The court is not concerned with punishing the prosecution or police for the way evidence was obtained but rather with the fairness of the proceedings.
However, where there is bad faith by the police in breaching PACE or the Codes of Practice, this is a factor likely to lead to exclusion under s.78, particularly where the defendant has been unfairly prejudiced.
How does s.78 apply to confessions obtained outside formal interviews at police stations?
If a suspect confesses outside a formal police station interview, Code C requires that a record is made, timed, signed by the maker, and that the suspect reads it and signs it as correct or indicates inaccuracies.
The confession must also be put to the suspect at the start of the formal interview, allowing the suspect to confirm or deny it.
These procedures protect both the suspect and the police, ensuring any confessions are dealt with contemporaneously and reducing the risk of fabricated or inaccurate confessions.
Even with these safeguards, the court’s decision on admissibility under s.78 will still depend on whether admitting the evidence would unfairly affect the fairness of the proceedings.
Provide a summary of when it is appropriate to exclude confessions under s.76 and/or s.78 PACE.
The key test for the court in deciding whether to exclude prosecution evidence under s.78 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.
Simply because evidence has been irregularly obtained (for example, in breach of PACE or the Codes of Practice) does not per se render it inadmissible.
It is perfectly appropriate and common practice for the defence to seek to exclude evidence of a confession under s.76 and, as an alternative, s.78.
s.78 PACE allows the court to examine a case from a perspective of overall fairness and can in principle offer broader protections to the defendant than s.76.
What are the four key aspects to making an application to exclude evidence?
The four key aspects to making an application to exclude a confession are:
- Advance notification
- Timing
- Voir dire (trial within a trial)
- Submissions
What are the requirements for advance notification when making an application to exclude a confession in a criminal trial?
Under the Criminal Procedure and Investigations Act 1996, section 6A, the defence must notify the court of points of law, including admissibility of evidence, in the defence statement.
The defence statement is mandatory in Crown Court cases and optional in magistrates’ courts.
At the Plea and Trial Preparation Hearing or Further Case Management Hearing, the judge may order the defence to serve a skeleton argument for any s.76/78 arguments with a response from the prosecution.
Time limits for case preparation in magistrates’ courts:
- Defence skeleton argument: at least 10 business days before trial.
- Prosecution response: 5 business days after the defence argument.
When can an application to exclude a confession be made in a criminal trial, timing wise?
Crown Court:
In the Crown Court, the application can be made either at a pre-trial hearing or just before opening the case to the jury (in the absence of the jury).
Pre-trial applications are suitable when the prosecution needs to know if the confession is admissible to proceed with the case or when the confession is the only significant evidence.
Applications can also be made during the trial, especially when there is no immediate need to resolve the issue at the outset.
Magistrates Court:
In a magistrates’ court, any application under s.76 should be dealt with as a preliminary issue.
What is a voir dire, and how does it function in confession exclusion applications?
A voir dire is a trial within a trial used to resolve disputes about the admissibility of a confession.
It is required when the prosecution must prove beyond reasonable doubt that the confession was not obtained by:
- Oppression or
- Anything likely to render the confession unreliable (under s.76(2)(a) and s.76(2)(b)).
Both the prosecution and defence can call evidence during a voir dire, and the judge will make findings of fact before ruling on admissibility.
The voir dire takes place in open court but in the absence of the jury (in Crown Court).
What is the consequence if a judge fails to resolve disputed facts in a voir dire?
If a judge fails to resolve disputed facts during a voir dire before ruling on the admissibility of a confession, the resulting conviction is likely to be quashed.
This is because it is logically impossible for the judge to be sure that the prosecution has proved the confession was not obtained by oppression or anything rendering it unreliable if the evidence has not been fully heard.
How does the process of voir dire differ between magistrates’ courts and Crown Court?
In magistrates’ courts, s.76 applications should be treated as a preliminary issue, with evidence heard to resolve any disputed facts.
If magistrates exclude a confession, they must exclude it from their own considerations, as they act as both judges of law and fact.
In Crown Court, a voir dire is required when there is a factual dispute under s.76 or both s.76 and s.78. The process occurs in the absence of the jury but in open court.
When are submissions sufficient to decide a confession exclusion application without a voir dire?
A voir dire is only necessary when there are disputed factual matters.
If the facts are agreed (e.g., agreed breaches of Code C), submissions can be made directly without the need for a voir dire.
Both the defence and prosecution will make oral submissions, with the defence relying on any previously submitted skeleton argument.
The judge will then rule on the admissibility of the confession.
What are the consequences of a ruling to exclude or admit a confession during a criminal trial?
If the confession is excluded, the prosecution cannot refer to it, and if it was their only significant evidence, they must offer no evidence, leading to a ‘not guilty’ verdict.
If the confession is admitted, the prosecution can use it, but the defendant can still challenge its reliability (e.g., claim threats during the interview) before the jury. The jury will then decide whether to rely on the confession.
Provide a summary of the practicals teps required to make an application to exclude evidence of a confession in a criminal trial.
If the ruling excludes the confession, the prosecution can not refer to it during the trial.
If the judge concludes that the confession is admissible, the prosecution would be entitled to adduce it. However, this would not deprive a defendant of raising issues of oppression, unreliability or unfairness before a jury for them to decide whether to rely on the confession.
Provide a summary of the practical steps required to make an application to exclude evidence of a confession in the Magistrates Court and the Crown Court.
In the magistrates’ court:
* Advance notification: any defence skeleton argument in support at least 10 business days before trial and the prosecution response 5 business days after that.
- Timing: In a magistrates’ court, any application under s.76 should be dealt with as a preliminary issue.
- Voir dire: where the application is under s.76 or boths.76 & s.78 and the evidence is disputed, the magistrates should hear evidence on the matter and decide the applications as a preliminary issue. If, however, the application in a magistrates’ court is only under s.78, the magistrates have a discretion to hear all the evidence in the usual way and decide upon its admissibility at a later stage.
In the Crown Court:
* Advance notification: generally at the PTPH, the judge is likely to order, when the defence is to serve a skeleton argument in support of any s.76/78 arguments, when the prosecution serve a response and when the arguments will be heard.
- Timing: the application to exclude the confession can be made at a pre-trial hearing listed specifically for this purpose or it can be dealt with just prior to opening the case to the jury (and in the absence of the jury).
- Voir dire: required where the application is made under s.76 (or both s.76 and s.78) and the evidence founding the application is in dispute.
What is the burden and standard of proof in criminal cases?
The burden of proof is always on the prosecution to prove the elements of the offence.
The standard of proof is “so that you are sure of guilt”, which is the modern equivalent of saying beyond reasonable doubt. The prosecution must prove this to the jury.
