CLP 4 - s.76 Flashcards
What does s.76 apply to?
A confession that was obtained by oppression (even if the court thinks the confession was true).
What is a confession?
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.
If proved, is s.76 discretionary?
No it is mandatory
Note: s.78 (adverse effect) is discretionary
S.76 - When might a confession not be given in evidence?
where obtained:
- by oppression of the person who made it
OR
- 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.
S.76 - Can the court require the prosecution to prove that a confession was not made under duress?
Yes - the prosecution must prove beyond all reasonable doubt
S.76 Where something was said or done to render a confession unreliable, does the court consider the reliability of the actual confession made?
No - Objective
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)
S.76 If a confession is found to be unreliable, does that prevent other evidence related to the confession from being admissible?
No
exclusion does not affect the admissibility in evidence of:
- facts discovered
- way speaks, writes or expresses himself.
However, you can’t say that the facts were found because of the confession.
When must a s.76 or s.78 application be made in the Magistrates Court?
In a defence statement provided 14 days before the hearing
Prosecution must respond 7 days before the hearing
Any s.76 matter should be dealt with as a preliminary issue (s.78 can be dealt with later)
When must a s.76 or s.78 application be made in the Crown Court?
Should be in the defence statement
- Normally PTPH or hearing after the PTPH or Just before the case opens
