Confession and Interview Evidence

Question 1

What 2 components make up the ‘Burden of Proof’

Answer 1

(1) Legal Burden
(2) Evidential Burden

Question 2

(1) Who GENERALLY has the ‘Burden of Proof’ and to what standard?
(2) There are 2 exceptions to this:
(a) Re EVIDENTIAL burden?
(b) Re LEGAL Burden

Answer 2

(1) Prosecution - prove an offence committed / disapprove of a defence BEYOND A REASONABLE DOUBT & provide SUFFICIENT EVIDENCE

(2) UNLESS:
(a) Defence - D has EVIDENTIAL burden
(b) Defence of Diminished responsibility - D has LEGAL burden to standard of BOP

Question 3

(1) What is meant by ‘Evidential Burden’?
(2) If the Prosecution does not meet the ‘Evidential Burden’ what should the D do at Trial?

Answer 3

(1) Provide SUFFICIENT EVIDENCE
(2) Submit ‘NO CASE TO ANSWER’ at the end of P’s case at Trial

Question 4

What is a ‘Confession’? 3 components

A Statement which is:

Answer 4

A STATEMENT which is:
(1) WHOLLY / PARTIALLY ADVERSE to the person making it
(2) Made to ANY person
(3) in WORDS or OTHERWISE (e.g. writing, orally etc)

Question 5

(1) What is the GENERAL on whether ‘Confession’ evidence is Admissible?
(2) What are the 2 exceptions to this?

Answer 5

(1) Confession Evidence IS Admissible
(2) UNLESS Excluded under:
(a) S76 PACE - ‘Oppression / Unreliability’
(b) S78 PACE - ‘Unfairness’

Question 6

Confession Evidence is Admissible unless excluded under S76 PACE.

What are the 2 grounds it can be excluded under in S76 PACE?

Answer 6

Obtained by:
(1) OPPRESSION
(2) UNRELIABILITY - ‘anything SAID or DONE …likely to render it Unreliable’

Question 7

Under the first ground of S76 PACE, a Confession will be Inadmissible if it is as a result of ‘Oppression’.

What are 3 examples of Oppression?

Answer 7

(1) Torture
(2) Inhumane / degrading treatment
(3) Threat / use of violence

Question 8

Under the second ground of S76 PACE, a Confession will be Inadmissible if it is as a result of ‘anything SAID or DONE…likely to render it UNRELIABLE’.

What is are 2 common examples of this?

Answer 8

(1) INDUCEMENT to Confess
(e.g. if you confess, we will release you / grant bail)

(2) Denial ACCESS TO LEGAL ADVICE

Question 9

For a Confession to be inadmissible under s76 PACE what must be shown?

Answer 9

CAUSAL link - oppression / thing said or done AND confession

Question 10

A confession obtained as a result of:
(1) S76 PACE - Oppression / Unreliability
(2) S78 PACE - Unfairness
MAY or MUST be excluded as evidence?

Answer 10

(1) S76 - MUST
(2) S78 - MAY IF ‘Signifiant and Substantial’

Question 11

A court MAY exclude evidence under S78 PACE. What ground is this under?

Answer 11

UNFAIRNESS - ‘adverse effect on the FAIRNESS of proceedings’

Question 12

Under S78 PACE, ‘Adverse effect on FAIRNESS of proceedings’, what is a common example of this?

Answer 12

Breach of PACE (e.g. NOT audio recording interview, not offering D access legal advice)

Question 13

(1) S78 is a ‘Discretionary’ Ground. The court is likely to only exclude evidence if it had a (x) and (y) affect on the FAIRNESS of Proceedings?
(2) Is a SINGLE breach of PACE likely to meet this standard?

Answer 13

(1) ‘Significant and Substantial’
(2) No

Question 14

What type of Evidence can be excluded under:
(1) S76 PACE
(2) S78 PACE

Answer 14

(1) Confession evidence
(2) ALL evidence

Question 15

What occurs after a D applies to exclude evidence under S76 or S78 PACE?

Answer 15

‘Voir Dire’ procedure

Question 16

If a Defendant applies to exclude evidence under S76 or S78 PACE, a ‘Voir Dire’ will take place.

(1) What is this?
(2) Will the judge and jury be present (if in CC)?
(3) What occurs?

Answer 16

(1) ‘Mini-trial’ within the trial
(1) Judge (NOT Jury)
(2) Representations made by P and D & judge decides