Chapter 4: Evidence Flashcards
1.1 Preliminary evidential matters
In talking about evidence, it is helpful to agree on some commonly used language, and some fundamental themes. This section will consider:
* facts in issue;
* proving a fact by means other than calling live evidence;
* types of evidence;
* admissibility, relevance and weight of evidence;
* tribunals of fact and law
1.2 Facts in issue
Let’s start with asking what it is that evidence is called for. That is not a difficult concept; you call evidence to prove your case. We will look in a moment at what burdens there may be on either side to prove a case, but what
we can agree on right away is that evidence is called by any party in order to prove the ‘facts in issue’. The facts in issue are the facts that any party needs to prove in order to prove its case.
1.2 Facts in issue
The facts in issue are the facts that any party needs to prove in order to prove its case. For the prosecution then, the facts in issue are those facts that are needed to prove the offence(s)
charged. The obvious place to start here is to simply list the ingredients of the offence. So, for a theft, the prosecution has to prove that the defendant appropriated property, belonging to another, dishonestly, with an intention of permanently depriving another of it
1.2 Facts in issue
The job of the court is then to try to narrow the issues as much as possible, by seeing what elements, if any, the defence agree upon. They still require proof, but you would be able to prove
these elements by means other than calling live evidence (see the next pages).
1.3 Proving a fact
There are several ways in which evidence can be established other than by a witness giving live evidence which we will consider in more depth:
* agreeing a witness statement as true by consent of the parties, Criminal Justice Act 1967, s.9;
* agreeing any fact between the parties, Criminal Justice Act 1967, s.10; and
* a judge or a jury to take ‘judicial notice’ of the fact.
1.3.1 Agreeing a witness statement as true by consent of the parties
s.9 Criminal Justice Act 1967
The witness’s statement can be agreed as accurate and true in its written form.
The statement is then simply read out, and carries the same weight as if the witness had attended in person, sworn (or affirmed), and given the evidence from the witness box.
Evidence will only be agreed in this way if there is no challenge to the evidence. If the evidence is
disputed, then the witness must be called and challenged orally, so that the court can see and assess the dispute being aired openly and decide upon the dispute accordingly.
1.3.2 Agreeing any fact between the parties
Criminal Justice Act 1967, s.10
Another way to prove a fact is simply for the advocates in a case to agree that the fact is so. The fact is reduced to writing, and both parties (the lawyers, not the witnesses) agree and sign the agreement.
So, for example, if a defendant is found with someone else’s credit card, the prosecution would need to prove that the owner of the card had not given anyone authority to take and use the
card. One could either acquire a witness statement from the original owner of the card or, more simply, just agree that the defendant was not the owner of the card and did not have permission to have it. We assume in this scenario that the defendant is challenging guilt on some other basis
and is not challenging that the card was someone else’s.
1.3.3 Judicial notice
The next way in which a fact may be ‘proven’ without evidence is for a judge or a jury to take ‘judicial notice’ of the fact. It is clearly the case that we all know some things without needing to
have them proven to us. We know if we are in a recession, or if the economy is doing well. We know that traffic in city centres at rush hour is pretty much universally awful. It would be remarkably tedious for the parties in trial to have to prove every last fact which might help the jury understand a case when much of the factual context for a case is simply ‘known’. Where
facts are generally and widely known, then formal proof of them is therefore not required.
1.3.3 Judicial notice
The doctrine of ‘notice’ goes a touch further, in that a judge is permitted to take judicial notice of a fact ‘on enquiry’. This simply means that judges might not know a particular fact ‘off the top of their head’ but could find out very easily, from a source that would be incontrovertible. So, for example, which counties border Staffordshire? If this was relevant to the case, the parties would have the option of asking the judge to take judicial notice ‘on enquiry’ and simply let the judge look up the answer. Jurors are not allowed to do their own research at any time.
1.3.3 Judicial notice
The final point on taking notice is that the jurors cannot take notice on personal matters that they happen to know, but are not generally known. If a juror has personal knowledge of matters that are relevant to a case, they should let the court know, and the judge can deal with any issues that
might arise.
1.4 Types of evidence
Evidence can come in a variety of forms:
(a) oral evidence given by a witness in court – the most common
(b) written form:
(i) agreed statements (s. 9 CJA 1967);
(ii) admitted facts (s. 10 CJA 1967)
(c) ’real’ evidence
(d) ‘direct’ evidence
(e) ‘circumstantial’ evidence
(f) a ‘view’.
Real Evidence
Real evidence – simply means objects and things which are brought to court for inspection. Some real evidence will be in the form of documents that are exhibited by a witness who can vouch for their origin.
Direct evidence v circumstantial evidence
The other way in which it is important to classify evidence is according to whether it is ‘direct evidence’, namely evidence that a witness gives of
having had direct experience of a matter in issue, or circumstantial evidence, ie evidence from which facts are inferred. An example of the difference might be (in a case where it is in issue where the defendant was at midnight) witness 1 saw the defendant at the station at midnight the other way in which it is important to classify
evidence is according to whether it is ‘direct evidence’, namely evidence that a witness gives of having had direct experience of a matter in issue, or circumstantial evidence, ie evidence from which facts are inferred. An example of the difference might be (in a case where it is in issue Awhere the defendant was at midnight) witness 1 saw the defendant at the station at midnight
A view
Occasionally juries can visit a scene of a crime, or leave court to view an object that cannot be brought into court. This is called a ‘view’. Their observations become evidence in the
case
1.5 Admissibility, relevance and weight of evidence
For any evidence to be admissible, it must be relevant. This is the first and most fundamental principle of evidence. Relevance is established by whether the evidence is ‘logically probative’ of a fact in issue – ie does
the evidence tend to prove or disprove a fact in issue. If evidence is irrelevant, it is inadmissible, and if the evidence is relevant, it is admissible. R v Usayi [2017] EWCA Crim 1394 In the case of R v Usayi a trial took place where the defendant was charged with a sexual assault.
1.5 Admissibility, relevance and weight of evidence
The defence had, in its possession, a note that tended to suggest that the complainant had earlier incorrectly indicated that her mother had died. The defence argued that this showed her to be dishonest. In the trial, there had been an argument about the admissibility of this evidence (on the basis of ‘hearsay’ – that a statement made out of court may not be presented in evidence as proof of its
contents). The Court of Appeal indicated that the evidence was insufficiently relevant regardless of the
hearsay arguments, and should not have been admitted as it had insufficient bearing on the
issues at hand.
1.5.1 Exclusionary rules
That is, of course, not the end of the matter in terms of admissibility. Having first considered relevance, you then consider whether the relevant evidence is nonetheless subject to an exclusionary rule. There are rules to protect the fairness of trials to prevent evidence which is relevant, but should still not be admitted because of the effect on the fairness of a trial.
For example, if the police acquired relevant information by using an illegal phone tap, then the courts would consider an exclusionary rule to prevent the use of the evidence in court
1.5.2 Weight
The final concept is that of ‘weight’. All evidence varies in terms of how strong, reliable and valuable it is. Attaching the right degree of weight to a piece of evidence is a matter for the jury. Advocates will typically devote considerable effort into persuading the jurors as to what weight they should
attach to the evidence.
1.5.2 Weight
However, if the evidence looks to be very problematic (eg a drunken man catching only a fleeting glimpse of a person committing a crime) then the judge may intervene to rule the evidence as inadmissible. This would be on the basis that although it may be relevant, no one could reasonably put any reliance on the evidence. So in extreme examples of poor-quality evidence, the weight of the evidence may affect its admissibility.
1.6 Tribunals of fact and law
We use the word ‘tribunals’ when asking these questions:
(a) Who in this case determines what the facts are; and
(b) Who in this case determines the law?
The answer to question one is that the ‘tribunal of fact’ is responsible for determining the facts. In
the Magistrates’ Court, the tribunal of fact is the bench of magistrates (or District Judge). In the Crown Court, the tribunal of fact is the jury.
1.6 Tribunals of fact and law
The second question is answered in similar terms, namely that the tribunal of law is responsible for the law, and in the Magistrates’ Court, the tribunal of law comprises the magistrates (or District Judge) and in the Crown Court, the tribunal of law is the judge. Issues of admissibility of evidence are matters of law for the tribunal of law to determine
1.7 Crown Court
The other critical point to note is that the tribunals are different in the Crown Court (i.e. judge and jury take one role each) but in the magistrates’ court, it is the same person (or people) playing
both roles. This has huge practical implications. As an example, a defendant might confess in a
criminal case, but then challenge the admissibility of the confession, perhaps saying that officers used force to extract the confession. In the Crown Court, the judge alone will hear the application to exclude as inadmissible the evidence of the confession
1.7 Crown Court
If the application is successful, the jury (as tribunal of fact) will never be told that there had been a confession. In the magistrates’ court,
it is the same bench that hears the application to exclude the confession that will ultimately consider guilt. Having ruled the confession as inadmissible, the magistrates must then ‘put out of their mind’ the confession and not let their knowledge of the confession influence their consideration of the facts of the case. It is like the dramas we all see from the U.S. where attorneys use foul play or some trick in the courtroom and the judge says ‘strike that from the record’ and
the jurors have to pretend that they never heard the improperly adduced evidence. The fact that in the magistrates’ court, the tribunals and fact and law are the same is regularly a strong reason for defendants to prefer trial in the Crown Court.
1.8 Summary
This section considered some of the basic principles of evidence.
* Facts in issue – the elements that any party needs to prove in order to prove its case.
* Proving a fact – by means other than calling live evidence:
- agreeing a witness statement as true by consent of the parties, Criminal Justice Act 1967,
s.9;
- agreeing any fact between the parties, Criminal Justice Act 1967, s.10; and
- a judge or a jury to take ‘judicial notice’ of the fact
1.8 Summary
- Types of evidence – oral evidence, written evidence (agreed statements and admitted facts from s.9 and s.10 CJA 1967), real evidence (such as objects), direct evidence, circumstantial evidence and a view (an observation).
- Evidence will be admissible if:
- relevant – ‘logically probative’ of a fact in issue – ie does the evidence tend to prove or disprove a fact in issue;
- not subject to an exclusionary rule of evidence; and - not so poor-quality evidence, that no one could reasonably put any reliance (weight).
- Tribunals of facts – determine what the facts of the case are. Tribunals of law – determine the law, such as issues of admissibility of evidence.
2 Legal and evidential burden
2.1 Burden and standard of proof
If you have been to any criminal court, or seen any legal drama, you will doubtless have heard
words along the lines of:
members of the jury, the prosecution brings this case, and it is the prosecution that has to prove
it. The standard to which the prosecution has to prove the case is ‘so that you are sure of guilt’
2.1 Burden and standard of proof
This is a simple statement of the burden and standard of proof.
* The burden of proving the elements of the offence is always on the prosecution.
* The standard to which prosecution proof is put is always “so that you are sure of guilt” which is simply a modern way of saying ‘beyond reasonable doubt’.
2.2 Legal burden
You may also have heard a judge or advocate say ‘the defendant has nothing to prove in this case’. This will be true in most cases – but not all. In some cases, the defendant has the burden to prove something too.
So far, the burden to prove an element of your case that we’ve been referring to is the legal burden. A legal burden is simply the requirement to prove an element of your case to a prescribed
standard. The standard varies between prosecution and defence
2.2 Legal burden
An example where the defendant has the burden to prove something would be one of the defences, such as insanity. It is not proper or reasonable for the prosecution to prove every single defendant in the world is sane. It is up to individual defendants to indicate (through their
advocates) that they are asserting a lack of mens rea by virtue of insanity. That assertion needs to be made by the defence, and proved by the defence. The standard for anything that the defence has to prove is the balance of probabilities.
2.3 Evidential burden
All that we now have to do is to explain the ‘evidential burden’ without losing sight of how simple
an idea the legal burden is.
In the previous examples you will have noted that it’s a question of fact for the tribunal of fact as to whether the legal burden of proof has been discharged. In the Crown Court, it’s the jury that’s being addressed when there are discussions about the prosecution proving its case beyond
reasonable doubt.
2.3 Evidential burden
However, before any issue is put before the jury, the judge has to be happy that the jury has heard some evidence on which it could find that the issue has been proved. There is a function here for the judge (as tribunal of law) to ensure that some evidence has been raised on an issue or fact, before the jury (as tribunal of fact) can find if the fact or issue is proved. The burden to raise
some evidence to satisfy the judge that the matter should be argued before the jury is the evidential burden.
2.4 Burden on the defence
It is very important to understand that if the defence simply challenges the prosecution case and
asserts that the prosecution is wrong, this does not create any burden on the defence. The defence can call evidence and make positive assertions such as ‘it was not me’, ‘you are lying’ and ‘your view was not good’, and none of these mean that a burden has passed to the defence.
It is simply that the defence is engaging and contesting issues that the prosecution has to prove.
2.4.1 Legal and evidential burden
In every case, if you have a legal burden to prove a fact in issue, you have the evidential burden of
‘passing the judge’ with the same evidence. However, in very rare cases, the legal burden and the evidential burden become detached. The only example that surfaces with any regularity at all is ‘self-defence’. This is a very special and rare breed, where the judge requires some evidence to be raised in order to put the issue before the jury, but where there is no actual standard of proof required. In the case of assaults generally, it is presumed that any use of force is unlawful. It is, however, possible that the defendant used
force in self-defence lawfully
2.4.1 Legal and evidential burden
The courts simply require that the defence raise ‘some’ evidence to
‘pass the judge’ that the defendant did act in self-defence. If the judge is content, then the prosecution is on notice that to prove that the use of force was lawful, it has to disprove selfdefence. The burden was always upon the prosecution to prove that the force was unlawful, so in a way nothing has changed, except that we now know that proving that the force was unlawful requires proof that the force was not in self-defence.
2.4.1 Legal and evidential burden
The evidential burden on the defence here has simply meant that the defence can’t make a speech to the jury calling on the jury to acquit on the basis of self-defence without actually having raised some evidence of self-defence earlier in the trial. To that extent, the rule simply gives force to common sense that the defence can’t raise a matter like this without at least some evidence of it.
2.6 Duress and alibi
- The prosecution are not required to predict that a defence of duress will be relied upon but if sufficient evidence is raised to leave it as a live issue it is the prosecution who must disprove it beyond a reasonable doubt.
- In a case of alibi the Judge must direct the jury that although the defence have raised the defence, it is not a matter for them to prove. The prosecution retain the burden of disproving the alibi so the jury are sure.
2.7 Summary
The Legal Burden
The burden of proving the elements of the offence is always on the prosecution.
* A legal burden – is simply the requirement to prove an element of your case to a prescribed
standard. The standard varies between prosecution and defence:
- The standard to which prosecution proof is put is always to convince the jury of guilt “so that they are sure” which means the same as ‘beyond reasonable doubt’.
- The standard for almost everything that the defence has to prove is the ‘balance of probabilities’
Evidential Burden
- An evidential burden – is where you have to raise some evidence to satisfy the judge that the matter should be argued before the jury.
- In every case, if you have a legal burden to prove a fact in issue, you have the evidential burden of ‘passing the judge’ with the same evidence. However, in very rare cases, the legal burden and the evidential burden become detached, such as self-defence.
How is evidence excluded?
It will often be necessary to make or respond to a legal application to exclude evidence in a criminal case. Sometimes, depending on the importance of the evidence, a successful application of this nature can result in the case coming to an end. Similarly, there are methods of applying to stop a case where it would be unfair or legally improper for it to continue, or where there is insufficient evidence in support of those charges the prosecution is pursuing.
3.1 Excluding evidence or seeking to stop a case
The principal ways of excluding evidence and/or seeking to bring a prosecution case to an end
are as follows:
* 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.
3.2 Applications for dismissal
An application for dismissal is a pre-trial application to have the charges against a defendant
dismissed. Such an application can be made:
(a) only after a defendant is sent by the magistrates’ court for trial to the Crown Court;
(b) only after the defendant has been served with the evidence relating to the offence; and
(c) only before the defendant is arraigned (ie the offence is put to D and D pleads guilty or not
guilty).
3.2 Applications for dismissal
The power to make the application is contained in Schedule 3 of the Crime and Disorder Act
(CDA) 1998 and the procedure is set out in CrimPR r.9.16.
The application is made to a Crown Court Judge and if the defendant wishes to make an oral
application D must give written notice of D’s intention to do so
The test for dismissing the charge 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.’
The test for dismissing the charge is set out in Schedule 3 para 2(2) CDA:
This amounts to the same test to be applied where the defence make a submission of no case to
answer, as set out in the case of R v Galbraith [1981] 73 Cr App R 124, CA, namely that the judge should stop the case:
(a) where there is no evidence that the crime has been committed by the defendant; or
(b) where the prosecution evidence, taken at its highest, is such that a properly directed jury could not properly convict on it.
R (on the application of Inland Revenue Commissioners) v Crown Court at Kingston [2001] 4 All ER
721; [2001] EWHC Admin 581
The Divisional Court held that a judge considering an application to dismiss must take into account the whole of the evidence and not view matters in isolation from their context or other
evidence; where the prosecution seeks inferences to be drawn from the evidence the judge should
assess whether such inferences could properly be drawn by the jury
R (Snelgrove) v Woolwich Crown Court [2005] 1 Cr App R 18; 1 WLR 3223 (DC)
It was held that judicial review cannot be used to challenge a decision by the Crown Court on an application to dismiss. Nonetheless, the ruling in R (on the application of Inland Revenue Commissioners) v Crown Court at Kingston regarding the approach to be applied in such applications remains valid
3.3 Submissions of no case to answer
During a trial and after the prosecution has presented all of its evidence, the defence are entitled
to submit to the judge that there is no case to answer on any one or all of the charges faced by the defendant. The application can be made in the magistrates’ court and the Crown Court.
Key case: R v Galbraith [1981] 73 Cr App R 124
In the case of R v Galbraith [1981] 73 Cr App R 124 Lord Lane CJ set out the following principles to be applied
‘(1) if there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case;
(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or
vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the
conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.
(b) Where, however, the prosecution evidence is such that its strength or
weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant
is guilty, then the judge should allow the matter to be tried by the jury …
Key case: R v Galbraith [1981] 73 Cr App R 124
A submission of no case to answer is made at the close of the prosecution case because it is only at this stage that the entirety of the prosecution case against a defendant can be considered. It is for this reason that a submission of no case to answer is often referred to as a ‘half-time
submission’ (ie after the prosecution case but before the defence case).
Key case: R v Galbraith [1981] 73 Cr App R 124
In the Crown Court the application will take place in the absence of the jury; if the application is unsuccessful the jury will not be informed that such an application has been made. However, if the application is successful, the jury will be informed that there is insufficient evidence on the count or counts involved and the judge will instruct the foreman to enter a verdict/verdicts of not
guilty
Galbraith Test
As can be seen from the Galbraith test, where there is no evidence to support the charge then
there will be no difficulty in stopping the case. This would be an application under the first limb of
Galbraith, such as where a witness accepts that the person who committed the offence is not the
person standing in the dock. In these circumstances, assuming there is no other evidence available to the prosecution, there is no evidence that the offence has been committed by the defendant and the case will be stopped.
Integrity of Evidence is Open to Question
The difficulty arises, as set out in the Galbraith test itself, when there is some evidence, albeit the integrity of that evidence is open to question. This is where the judge/magistrates will have to consider whether that evidence, taken at its highest, is such that a conviction can properly be
founded upon it. This is an application under the second limb of Galbraith, such as where a
witness has given inherently weak, vague or contradictory evidence, or where the credibility of the witness is open to question, such that the evidence presented by the prosecution could not properly found a conviction. In general, issues of credibility are matters for the tribunal of fact (the jury/magistrates) to weigh up in reaching a verdict and will not normally result in a case
being stopped on a submission of no case to answer
CrimPR r.24.3(3)(d)
In the magistrates’ court the procedure is contained in CrimPR r.24.3(3)(d) and in the Crown
Court CrimPR r.25.9(2)(e), both of which provide that, at the conclusion of the prosecution case, on the defendant’s application or on its own initiative, the court (i) may acquit on the ground that the prosecution evidence is insufficient for any reasonable court properly to convict, but (ii) must not do so unless the prosecutor has had an opportunity to make representations (ie the
prosecution must be given the right to reply to such an application). The test here is taken from Galbraith and there is no material difference between the two. There is no obligation in the magistrates’ court or the Crown Court for reasons to be given when rejecting a submission of no case to answer.
3.4 Abuse of process applications
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. Such cases often go beyond applications
to exclude evidence; rather, they go to the heart of whether or not a case should be allowed to continue. In such cases the defence can apply to stay proceedings as an abuse of process of the court. R v Crawley [2014] 2 Cr App R 16; [2014] EWCA Crim 1028
Sir Brian Leveson P summarised the power to stay proceedings as an abuse of process as follows:
“there are two categories of case in which the court has power to stay proceedings for abuse
of process. These are, first, where the court concludes that the accused can no longer receive a fair hearing; and, second, where it would otherwise be unfair to try the accused or, put
another way, where a stay is necessary to protect the integrity of the criminal justice system.
The first limb and the second limb
The first limb focuses on the trial process and where the court concludes that the accused
would not receive a fair hearing it will stay the proceedings; no balancing exercise is required. The second limb concerns the integrity of the criminal justice system and applies where the
court considers that the accused should not be standing trial at all, irrespective of the potential fairness of the trial itself.“
He went on to say:
”Furthermore, it is clear from the authorities and beyond argument that there is a strong
public interest in the prosecution of crime and in ensuring that those charged with serious criminal offences are tried. Ordering a stay of proceedings, which in criminal law is effectively a permanent remedy, is a remedy of last resort. As Lord Bingham of Cornhill observed in
Attorney General’s Reference (No.2 of 2001) … ‘The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances.’”
R v Maxwell [2011] 2 Cr App R 31, SC: Two categories of cases
Dyson LJ put it like this:
‘It is well established that the court has the power to stay proceedings in two categories of case, namely: (i) where it will be impossible to give the accused a fair trial; and (ii) where it
offends the court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case. In the first category of case, if the court concludes that an accused cannot receive a fair trial, it will stay the proceedings without more. No question of the balancing of competing interests arises
Second category of cases
In the second category of case, the court is concerned to protect the integrity of the criminal justice system. Here a stay will be granted
where the court concludes that in all the circumstances a trial will offend “the court’s sense of justice and propriety” (per Lord Lowry in R v Horseferry Road Magistrates’ Court Ex p. Bennett [1994] 98 Cr App R 114 at 135; [1994] 1 A.C. 42 at 74) or will “undermine public confidence in the
criminal justice system and bring it into disrepute” (per Lord Steyn in R v Latif [1996] 2 Cr App R 92 at 100; [1996] 1 W.L.R. 104 at 112).’
There are numerous examples of where the defence might apply to have the proceedings stayed
as an abuse of the process of the court. These include:
- where a defendant has been tricked or coerced into committing an offence the defendant would not otherwise have committed
- where a defendant is prosecuted despite an unequivocal promise by the prosecution that the
defendant will not be - where the police have acted in such a way as to undermine public confidence in the criminal
justice system and bring it into disrepute, such as by deliberately destroying evidence that would have assisted the defence - where the prosecution has manipulated or misused the process of the court so as to deprive a
defendant of a protection afforded by law
Delay and Abuse of the Process of Court
Delay can amount to an abuse of process of the court. If the prosecution has deliberately delayed
proceedings in order to gain a tactical advantage this is likely to amount to an abuse of process. Even if the defence cannot assert that the prosecution has deliberately delayed proceedings, inordinate or unconscionable delay due to the inefficiency of the prosecution in bringing a case coupled with prejudice caused to the defence as a result may be sufficient for an abuse of process application to succeed (R v Gateshead Justices, ex parte Smith [1985] 149 JP 861).
Application to Stay in Proceedings
The application is to stay the proceedings as an abuse of process. This means that, if the
application is successful, the prosecution case will not be able to proceed. This is not the same as
a ‘not guilty’ verdict, albeit there will be no conviction and the defendant’s record will not be tarnished. In bringing such an application the defence will have to prove abuse of process on the balance of probabilities. Abuse of process applications are mainly dealt with in the Crown Court (where the application is to stay the indictment as an abuse of process). They can, however, be brought in the magistrates’ court but only on the ground that a defendant is unable to have a fair trial (and not on the ground that the integrity of the justice system has been brought into
disrepute – an application on this basis would have to be made to the Divisional Court by way of
judicial review)
3.5 Common law discretion to exclude evidence
PACE Section 82(3) ‘82(3) Nothing in this Part of this Act shall prejudice any power of a court to exclude evidence (whether by preventing questions from being put or otherwise) at its discretion.
Section 82(3) PACE
Section 82(3) PACE preserves the common law discretion of the courts to exclude evidence where its prejudicial effect outweighs its probative value; this includes the discretion to exclude evidence
if it is necessary in order to secure a fair trial for the accused
Section 82(3) PACE
This discretion to exclude evidence applies only to prosecution evidence. As such, at common law, it is not open to the prosecution to apply to exclude defence evidence, or for one defendant to apply to exclude evidence which a co-defendant seeks to admit. If significant unfairness would result to a defendant from a co-defendant’s evidence in such circumstances the defendant could
apply to be tried separately from the co-defendant.
In practice
In practice, the common law discretion to exclude evidence has little relevance. This is due to the wide-ranging statutory powers to exclude evidence, particularly under s.78 and s.76 PACE. As you have read, the court also has considerable powers in a number of circumstances to stay the indictment where to allow the case to continue would be an abuse of process
3.6 Section 78 applications
Section 78 Police and Criminal Evidence Act 1984 (PACE)
’Exclusion of unfair evidence
(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 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
3.6 Section 78 applications
(2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.’
Section 78 PACE is concerned with the fundamental concept of fairness and is the principal and most important means by which the defence can seek to have prosecution evidence excluded.
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. R v Quinn [1990] Crim.L.R. 581
Lord Lane CJ explained the nature of the court’s exclusionary discretion under s.78:
The function of the judge is therefore to protect the fairness of the proceedings, and normally proceedings are fair if a jury hears all relevant evidence which either side wishes to place before it, but proceedings may become unfair if, for example, one side is allowed to
adduce relevant evidence which, for one reason or another, the other side cannot properly challenge or meet.
Exclude any prosecution evidence
Being of general application, s.78 has been used in a wide variety of cases to seek to exclude any
prosecution evidence which the defence consider would result in unfairness. This often, but not
always, includes taking into account matters which the defence contend amounts to such evidence having been obtained unlawfully, improperly or unfairly. 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).
Section 78. is commonly utilised in
Section 78 is also commonly utilised alongside s.76 PACE to seek to exclude evidence of confessions which the prosecution seek to rely upon (the sections on confessions will cover this in
more detail). It is worth bearing in mind that simply because evidence has been irregularly obtained does not per se render it inadmissible.
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.
Section 78
The court is not concerned with marking its disapproval of police conduct by excluding evidence,
or otherwise seeking to punish the prosecution for the way in which evidence has been obtained,
it is simply concerned with whether fairness dictates that the evidence should be excluded in the
circumstances. However, where there has been bad faith on the part of the police when acting in breach of PACE
or the Codes of Practice that is a factor which is likely to lead to exclusion of the evidence.
3.7 PACE Codes of Practice
Since s.78 refers to having regard to all the circumstances, including the circumstances in which
the evidence was obtained the defence will, where applicable, refer to breaches of the Codes of
Practice under PACE when making a s.78 application. The Codes of Practice are issued under s.66 PACE and set out the procedures that the police (or other investigators) must follow in the exercise of their powers under PACE. As such, it will often be
the case that the defence will rely on a breach of the code as the basis for seeking to exclude the evidence under s.78. Under s.67(11) PACE the codes are admissible in evidence; this means that where a breach of a
code is alleged the defence are entitled to rely in court on the content of the code which sets out
those procedures which should have been followed.
There are eight Codes of Practice, namely:
- 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); and
- Code H (Detention, Treatment and Questioning of Terrorism Suspects).
3.8 Code C
To take an example, Code C (the Code of Practice for the Detention, Treatment and Questioning
of Persons by Police Officers) contains, amongst many others, the following provisions which
must be followed by the police:
Paragraph 3.1
(a) Paragraph 3.1 provides that detained suspects must be informed of:
(i) their right to consult privately with a solicitor and that free independent legal advice is available;
(ii) their right to have someone informed of their arrest; and
(iii) their right to consult the Codes of Practice.
Paragraph 10.1
(b) Paragraph 10.1 provides that a person whom there are grounds to suspect of an offence must
be cautioned before any questions about the offence are put to them, if either the suspect’s answers or silence may be used in evidence against them.
Paragraph 10.3
(c) Paragraph 10.3 requires the caution to be given on arrest.
Paragraph 10.5
(d) Paragraph 10.5 states that the caution should be in the following terms: ‘You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.’
Minor deviations are permissible (para 10.7).
Paragraph 11.1A
(e) Paragraph 11.1A defines an interview as ‘the questioning of a suspect regarding their
involvement or suspected involvement in a criminal offence’
Paragraph 11.1
(f) Paragraph 11.1 requires an interview to take place at a police station, except where the delay
would:
(i) lead to interference or harm to evidence connected with an offence
(ii) interference with or physical harm to other people
(iii) serious loss or damage to property
(iv) lead to alerting other suspects who have not yet been arrested; or
(v) hinder the recovery of property obtained as a result of the offence.
Paragraph 11.15
(g) Paragraph 11.15 requires juveniles (under 18s) or those with mental disorders or who are
mentally vulnerable only to be interviewed in the presence of an appropriate adult.
Pace Code C Note 1G
Mentally vulnerable’ applies to any detainee who, because of their
mental state or capacity, may not understand the significance of what is said, of questions or of
their replies. An appropriate adult (see Code C Note 17G and Annex E para 2 for definition) should not be
confused with a legal adviser and an appropriate adult will attend the interview in addition to the legal adviser. The appropriate adult gives advice to the suspect, observes whether the interview is conducted properly and fairly and assists with communication – see para 11.17 Code C.
3.8.1 Section 78 application examples
To this end s.78 has been used variously to exclude evidence obtained where:
* the ‘fundamental right’ of access to legal advice has been improperly denied;
* where waiver of the right of access to legal advice was not voluntary, informed or unequivocal;
* where there has been a failure to caution a suspect before questioning;
* where an appropriate adult has not been provided for a youth, mentally disordered or mentally vulnerable suspect;
* where identification procedures have not been followed
In the sections on confessions you will see more examples of how s.78 is used as a further or alternative argument to exclude confession evidence.
3.9 Significant and substantial breaches of the codes
Charles v Crown Prosecution Service [2009] EWHC 3521 Moses LJ stated (concerning Code C):
‘These provisions are not a mere rigmarole to be recited like a mantra and then ignored. The provisions of the PACE Act and the code relating to caution are designed to protect a detainee. They are important protections. They impose significant disciplines upon the police as to how
they are to behave
Moses LJ stated (concerning Code C):
If they can secure a serious conviction in breach of those provisions that is an important matter which undermines the protection of a detainee in the police station. That is not to say, by any means, that every breach will lead to the exclusion of the evidence
obtained in consequence of that breach; far from it. It is merely to emphasise the general importance of the breaches when exercising the judgment in Section 78. Their significance must be taken into account.’
3.9 Significant and substantial breaches of the codes
In R v Keenan, a case concerning the ‘Verballing’ Provisions of Code C (requirement to make
accurate record of interview and for the suspect to sign the record as accurate), Hodgson J said:
‘It is clear that not every breach or combination of breaches of the codes will justify the exclusion of interview evidence under section 76 or section 78 … They must be significant and substantial. If this were not the case, the courts would be undertaking a task which is no part of their duty:
Lord Lane CJ said in Reg v Delaney, The Times, 30 August 1988:
‘It is no part of the duty of the court to rule a statement inadmissible simply in order to punish the police for failure to observe the Codes of Practice. But if the breaches are “significant and substantial”,
we think it makes good sense to exclude them.’
R v Roberts [1997] 1 Cr App R 227
The Court of Appeal gave guidance on the approach that should be adopted to questionable
police conduct. Hirst LJ:
‘In our judgment … the true test is whether, having regard to the circumstances of the case as
a whole, the conduct of the police, either wittingly or unwittingly, led to unfairness or injustice:
and we consider that the proper adjudicator of this question is the trial judge himself, who has
seen the witnesses, and who has a wide margin of discretion under section 78 which should only be disturbed in this court if it can be shown that he erred in principle or was plainly wrong.’
Not seriousness of breach but rather effect of breach
It is important to remember that when considering an application under s 78 the principal
consideration is not the seriousness of any breach per se, but rather the effect of the breach, namely 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. The position is therefore that the more
significant and substantial the breach, the more likely it is to result in unfairness and, thus, exclusion.
Conversely, even major breaches will not lead to exclusion if the court reaches the view that no unfairness was caused in the circumstances.
See R v Quinn [1995] 1 Cr App R 480
and R v Dures [1997] 2 Cr App R 247
for the proposition that the Court of Appeal will not interfere with a judge’s decision under s.78
unless satisfied that the decision was perverse, ie no reasonable judge having heard the evidence
could have reached the conclusion that he did.
R v Ryan [1992] Crim LR 187
The Court of Appeal held that it was far from inevitable that where there had been a substantial breach of the PACE Codes the evidence was always required to be excluded. In this case the judge could properly conclude that despite a breach of Code D no prejudice had been caused to
the defendant.
3.10 Making a section 78 application
An application under s.78 PACE can be made:
* before the trial;
* at the commencement of the trial; or
* just prior to the prosecution seeking to admit the evidence which the defence wish to be
excluded
3.10 Making a section 78 application
Where an application to exclude evidence under s.78 would, if granted, result in the prosecution
case being fatally weakened (because the prosecution would be left with no or insufficient remaining evidence to proceed) a judge will often want that argument to take place at a pre-trial
hearing or at the commencement of the trial; in the Crown Court this would often be before a jury is sworn. On the other hand, where the application relates to a matter of less significance the judge may direct that the matter is dealt with at a convenient moment during the trial itself. If the argument is not heard before the case commences, the prosecution should avoid making any
reference to the disputed evidence in the opening speech. The key point is that a s.78 application should be made before the evidence to which objection is taken is adduced.
3.10 Making a section 78 application
Where the point of law is clear from the case papers or becomes clear following initial disclosure,
the defence should include the point of law in the Defence Statement together with any authorities relied upon (s.6A(1)(d) Criminal Procedure and Investigations Act (CPIA) 1996).
In practice, the defence representative will often draft a skeleton argument in support of D’s
application and the prosecution will draft a skeleton argument opposing it.
3.10 Making a section 78 application
Directions will be given by the judge in the Crown Court, usually at the Plea and Trial Preparation
Hearings (PTPH), as to when a s.78 application will be heard. Directions will be given by the judge in the Crown Court, usually at the Plea and Trial Preparation Hearings (PTPH), as to when a s.78 application will be heard. Similar directions will be given when dealing with case management at the magistrates’ court.
3.11 Voir dire
Since a s.78 application is an application by the defence (to exclude prosecution evidence), the
defence representative will address the court first followed by the prosecution advocate responding.
In Crown Court
In the Crown Court, where there is a dispute on the facts between the defence and the prosecution, the judge will not be able to determine the s.78 application until the factual matter has been resolved. For example, if the defendant is advancing an argument that the police acted in a way that was in breach of the PACE codes but the police officers concerned deny this, then the judge will have to hear evidence and make a decision on the facts before the judge can decide
how the law should be applied
Normal Burden and Standard of Proof
The normal burden and standard of proof in criminal cases apply,
so in order to find in favour of the prosecution version of the facts the judge will have to be satisfied of that factual position beyond reasonable doubt. If the judge concludes after hearing the evidence that the police acted appropriately, the legal argument will fail. On the other hand,
if the judge concludes that the police misbehaved and that there had been a significant and substantial breach of the code resulting in unfairness to the defendant, then the evidence
concerned is likely to be excluded
Mini Trial or Trial within Trial
Hearing evidence in this way on a legal argument is called a trial ‘on the voir dire‘ (commonly referred to simply as a ‘voir dire‘) and is a type of mini-trial or ‘trial within a trial’. The evidence called by the prosecution and defence will relate only to the matters in dispute. In a voir dire the
witnesses testify on a special form of oath/affirmation. ’That I will true answer make to all such questions as the court shall demand of me’.
Takes place in the absence of a jury
Being a legal argument, in the Crown Court a voir dire takes place in the absence of the jury. In
the magistrates’ court, the magistrates (being both the tribunal of fact and law) can rule on a s.78
application when it arises or hear all the evidence (including the disputed evidence relating to the
legal argument) before ruling on admissibility. However, the interests of justice may dictate that a
ruling on admissibility is made early enough to allow the defendant to know whether that evidence forms part of the case, to deal with it in cross-examination and in D’s evidence and, if appropriate, to make a meaningful submission of no case to answer. This is particularly the case where the disputed evidence is a confession which forms the main evidence against a defendant.
As such, disputed confessions should be determined as a preliminary issue. When the application is under both s.76 and s.78 PACE a voir dire should be held as a preliminary issue.
3.12 Summary
Main methods to exclude evidence or stop a case
* 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 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.
This section also considered 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. - 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 section also considered applications to exclude evidence under s.78 PACE:
- 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
4 Excluding confessions – s.76
4.1 What is a confession?
’Section 82 In this Part of this Act—
”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.
4.1 What is a confession?
The definition of a confession in the Police and Criminal Evidence Act 1984 (PACE), s. 82(1) is deliberately wide and the following will fall within the definition:
* unequivocal confessions of guilt (ie wholly inculpatory statements such as ‘I did it’).
* mixed statements (those which are partly inculpatory and partly exculpatory, such as ‘I had
nothing to do with it but I was glad to see the victim die’). These fall within the definition of a confession because they are partly adverse to the maker.
* depending on the context, a nod, sign or gesture can be sufficient, as a confession does not have to be articulated in words.
Wholly exculpatory statements (‘It was nothing to do with me’) do not fall within the definition of a
confession.
4.2 Admissibility of confessions
Section 76 PACE
Section 76 – Confessions.
(1) In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not
excluded by the court in pursuance of this section.
(2) If, in any proceedings where the prosecution proposes to give in evidence a confession
made by an accused person, it is represented to the court that the confession was or may have been obtained—
Section 76 – Confessions.
(a) by oppression of the person who made it; or
(b) in consequence of 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, the court shall not allow the confession to be given in evidence against him except in so far as
the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.
Section 76 – Confessions
(3) In any proceedings where the prosecution proposes to give in evidence a confession made
by an accused person, the court may of its own motion require the prosecution, as a condition
of allowing it to do so, to prove that the confession was not obtained as mentioned in subsection (2) above.
(4) The fact that a confession is wholly or partly excluded in pursuance of this section shall not
affect the admissibility in evidence—
(a) of any facts discovered as a result of the confession; or
(b) where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, of so much of the confession as is necessary to show that he does so
Section 76 – Confessions.
(5) Evidence that a fact to which this subsection applies was discovered as a result of a statement made by an accused person shall not be admissible unless evidence of how it was discovered is given by him or on his behalf.
(6) Subsection (5) above applies:
(a) to any fact discovered as a result of a confession which is wholly excluded in pursuance of this section; and
(b) To any fact discovered as a result of a confession which is partly so excluded, if the fact is
discovered as a result of the excluded part of the confession.
Section 76 – Confessions.
(7) Nothing in Part VII of this Act shall prejudice the admissibility of a confession made by an
accused person.
(8) In this section “oppression” includes torture, inhuman or degrading treatment, and the use
or threat of violence (whether or not amounting to torture).’
It follows that there are two main ways under s.76 to challenge a confession:
(a) under s.76(2)(a) – ‘oppression’; or
(b) 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’.
Note that s.76 does not automatically come into play to challenge confessions. Rather, it only
operates where ‘it is represented to the court’ by the defence that s.76(2)(a) or (b) apply. However,
even where there is no defence challenge, s.76(3) provides that the court itself can require the
prosecution to prove that the confession was not obtained as set out in s.76(2)(a) or (b)
4.3 Limb 1 – Exclusion for oppression – s.76(2)(a)
Section 76(2)(a) provides that where it is represented to the court that the confession was or may have been obtained by oppression of the person who made it, then 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 (notwithstanding that it may be true) was not
obtained as aforesaid.
Definition of oppression
’Oppression’ is widely defined in s.76(8) to include torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture). This wording reflects that contained in European Convention on Human Rights, Article 3.
R v Fulling [1987] QB 426, 85 Cr App R 136- The Court of Appeal held that ‘oppression’ in s.76(2)(a) should be given its ordinary dictionary meaning:
‘The Oxford English Dictionary as its third definition of the word runs as follows: “exercise of authority or power in a burdensome, harsh, or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc., or the imposition of unreasonable or unjust burdens.” One of the
quotations given under that paragraph runs as follows: “There is not a word in our language
which expresses more detestable wickedness than oppression.” We find it hard to envisage any
circumstances in which such oppression would not entail some impropriety on the part of the
interrogator.
Oppression is subjective
What might be oppressive to one person might not be oppressive to another, so it is legitimate to
consider the character and attributes of the accused. Once the defence represent that the confession was obtained by oppression, or the court chooses to act of its own motion under s.76(3), the prosecution must prove beyond reasonable doubt that
it was not so obtained. 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.
Judge satisfied beyond reasonable doubt
If, however, the judge is satisfied beyond reasonable doubt that the confession was not obtained
by oppression (and is therefore admissible), 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. Of course, it
would then be for the jury to decide for themselves whether to rely upon the alleged confession or not.
4.4 Limb 2 – Exclusion for unreliability – s.76(2)(b)
Section 76(2)(b) provides that:
- where it is represented to the court that
- the confession was or may have been obtained in consequence of 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 - 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 (notwithstanding that it may be true) was not obtained as aforesaid
4.5 How to approach s.76(2)(b) cases
The Court of Appeal in R v Barry [1991] 95 Cr App R 384 set out the approach to adopt in cases
involving s.76(2)(b). Where a defendant alleges that their confession is unreliable within s.76(2)(b) PACE, the correct approach is:
Step 1
First, to identify the thing said or done, which requires the trial judge to take into account everything said and done by the police
Step 2
Secondly, to ask whether what was said and done was likely in the circumstances to render
unreliable a confession made in consequence. The test is objective taking into account all the
circumstances
Step 3
Thirdly, to ask whether the prosecution has proved beyond reasonable doubt that the
confession was not obtained in consequence of the thing said and done, which is a question of
fact to be approached in a common sense way.
4.6 1. Identify the thing said or done
The first step is to identify the thing said or done. There are numerous examples of what the thing said or done can be. These can be positive acts, such as a promise, inducement or trick. Examples are:
* a promise to release someone promptly from police custody only if they ‘tell all’; or
* a promise of bail from the police station conditional on a full and frank confession; or
* a threat to arrest a suspect’s partner or other family members if the suspect does not ‘cooperate’.
Can be omission or failure to act
The thing said or done can also be an omission or failure to act, such as interviewing a young or
mentally vulnerable suspect without an appropriate adult. The thing said or done must not simply be something from the suspect, but from something external to the person. A suspect who makes an admission because they consider this is likely to get them bail (when the suspect has not been induced into believing this) cannot subsequently
rely on s.76(2)(b)
Breach of PACE Code C
Often when s.76(2)(b) is invoked the defence will be submitting that what was said or done was
itself a breach of PACE Code C – the Code of Practice for the Detention, Treatment and
Questioning of Persons by Police Officers. Code C contains numerous provisions concerning the
detention and questioning of suspects; these include the right not to be held incommunicado, the
right to legal advice and the right to be cautioned prior to being questioned. Code C also
contains provisions regarding the right to appropriate rest at the police station and the right (for
juveniles, the mentally disordered and the mentally vulnerable) to an appropriate adult. This is not
to say that the thing said or done will always include an alleged breach of Code C, or that it must
involve such a breach, but it will often do so.
Amounts to both oppression and ‘anything said or done’
There will be occasions where the conduct of the police or other investigator amounts both to
‘oppression’ within s.76(2)(a) and to ‘anything said or done’ within s.76(2)(b). These provisions are disjunctive and therefore either or both can be used to challenge a confession depending on the circumstances of the particular case.
4.7 2. Ask whether what was said and done was likely in the circumstances to render unreliable a confession made in consequence
Having established what was said or done, the second step is to ask whether what was said or done was likely in the circumstances to render unreliable a confession made in consequence.
Application is made under s.76(2)(b)
When an application is made under s.76(2)(b) the court does not consider the reliability of the
confession which has been made, but a hypothetical question – the court must decide whether
there is a likelihood that any confession would be unreliable in the circumstances prevailing at the
time (R v Gill [2004] EWCA 3245).
Re Proulx [2001] 1 All ER 57
Mance LJ stated:
The test is not whether the actual confession was untruthful or inaccurate. It is whether whatever was said or done was, in the circumstances existing at the time of the confession, likely to have rendered such a confession unreliable.’
4.7.1 What does ‘unreliable’ mean?
R v Crampton [1990] 92 Cr App R 369, CA Stuart-Smith LJ put it as follows:
‘The word “unreliable”, in our judgment, means “cannot be relied upon as being the truth”.
What the provision of subsection 2(b) is concerned with is the nature and quality of the words spoken or the things done by the police which are likely to, in the circumstances existing at the time, render the confession unreliable in the sense that it is not true. It is quite plain that if those acts and words are of such a quality, whether or not the confession is in fact true, it is inadmissible.’
Test is objective
The test is an objective one taking into account all the circumstances. For example, even if the police were not aware at the time of the need to call an appropriate adult (and as such are not deliberately breaching the provisions of PACE Code C), if the suspect was in fact mentally vulnerable and should, therefore, have had the assistance of an appropriate adult and – viewed
objectively – the absence of an appropriate adult would have been likely to render any confession
unreliable, then the confession should have been excluded under s.76(2)(b).
In Gill it was put this way:
The relevant question is whether, having regard to the purpose for which an appropriate adult
is required, the absence on this occasion of the protection which such presence would have
provided is likely to have rendered any confession made at that time unreliable.’
4.8 Examples of unreliable confessions
4.8.1 Deprivation of sleep
R v Trussler [1988] Crim LR 446
The defendant had been 18 hours without rest prior to his confession during interview. This was a clear breach of Code C and his confession was unreliable and should have been excluded under s.76(2)(b) PACE
4.8.2 Failure to caution
R v Doolan [1988] Crim.L.R. 747, CA
The appellant argued that there had been breaches of PACE Code C during his robbery trial and
that his interview containing a confession should have been excluded. Amongst other things there had been a failure to caution the appellant at interview or to remind him of an earlier caution. The
court held that the confession had been wrongly admitted – the failure to caution was likely, in the circumstances existing at the time, to render the confession unreliable
4.8.3 Denial of access to legal advice
R v McGovern (1990) 92 Cr App R 228, CA When she was arrested for murder, the appellant was 19 years old and 6 months pregnant. She
was of limited intelligence. She was refused access to a solicitor in breach of Code C. She was ill, distressed and not readily able to understand the caution. During her first interview she confessed to taking part in the killing. During her second interview she made further admissions in the
presence of a solicitor. She was convicted of manslaughter at trial
Appeal - Confessions should be excluded
On appeal against her conviction, she argued that her confessions should have been excluded. The Court of Appeal allowed the appeal on the basis that the first confession was made as a result of a denial of access to a solicitor and was therefore likely to be unreliable under s.76(2)(b)
PACE, even though it was later admitted to be true. Concerning the second interview, the court found that because the first interview was conducted in breach of Code C the subsequent interview was similarly tainted.
4.9 3. Ask whether the prosecution has proved beyond reasonable doubt that the confession was not obtained in consequence of the thing said and done (s.76(2)(b))
Having identified the thing said or done and whether what was said and done was likely in the circumstances to render unreliable a confession made in consequence, you must now ask whether the prosecution has proved beyond reasonable doubt that the confession was not obtained in consequence of the thing said and done. As stated in Barry [1991] 95 Cr App R 384, this is a question of fact for the judge and must be
approached in a common sense way
4.9 3. Ask whether the prosecution has proved beyond reasonable doubt that the confession was not obtained in consequence of the thing said and done (s.76(2)(b))
By way of reminder, Defence Counsel will be acting on the instructions from the defendant or
from other evidence. Once it is represented by Defence Counsel to the court that the confession
‘was or may have been obtained’ by anything said or done which was likely in the circumstances
to render any confession unreliable (s.76(2)(b)), ‘the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as
aforesaid.
4.10 Evidence discovered as a result of an excluded confession
PACE s.76(4)
Section 76(4) PACE provides: the fact that a confession is wholly or partly excluded in pursuance
of this section shall not affect the admissibility in evidence—
’(a) of any facts discovered as a result of the confession; or
(b) where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, of so much of the confession as is necessary to show
that he does so.
