Confession Evidence: s76 and s78

Question 1

what is the definition of a confession?

Answer 1

a statement wholly or partly adverse to the person making it, whether made to a person in authority or not and whether made in words or otherwise

Question 2

does a confession have to be made under caution?

Answer 2

no - it does not have to be made under caution or to someone in authority

Question 3

what are examples of a confession?

Answer 3

• unequivocal confessions of guilt (wholly inculpatory statements such as ‘I did it’).
• mixed statements (partly inculpatory and partly exculpatory, such as ‘I didn’t do it, but I was glad to see him die’)
• a nod, sign or gesture can be sufficient
• ‘Partly adverse’ includes D answering ‘maybe’
• D can make a confession to relative and relative can tell police – this is still a confession by D

Question 4

are confessions admissible in evidence?

Answer 4

Confessions are admissible unless the defendant applies to exclude them under s 76 and/or s 78

Question 5

who has the burden of proof in relation to s76?

Answer 5

the defendant can raise the application to exclude confession evidence then it is for the prosecution to disprove s76 beyond reasonable doubt

Question 6

does the court have discretion to exclude or not exclude confessions under s 76?

Answer 6

no - if a ground under s76 is made out, the court must exclude the confession (court does not have discretion)

Question 7

what are the grounds to exclude confession evidence under s 76?

Answer 7

the court shall not allow the confession where:

1. the confession was or may have been obtained through oppression of the person who made it
2. the confession was or may have been obtained as a result of anything said or done which was likely, in the circumstances existing at the time to render any confession made by the accused unreliable

unless the prosecution proves beyond a reasonable doubt that this was not the case

Question 8

what is the oppression ground under s 76?

Answer 8

• s76(2)(a) = the confession was or may have been obtained through oppression of the person who made it
• oppression is widely defined - includes torture, inhuman or degrading treatment, and the use or threat of force
• this is subjective - what might be oppressive to one person might not be oppressive to another = consider the character and attributes of the accused
• the oppression must have caused the confession (prove causation)

Question 9

what is the something said or done ground under s 76?

Answer 9

s 76(2)(b) = a confession was or may have been obtained as a result of anything said or done which was likely in the circumstances existing at the time to render unreliable any resulting confession by the accused

requires to prove:
1. something was said or done
2. the thing likely made a resulting confession unreliable

Question 10

what can the thing said or done include under s 76(2)(b)?

Answer 10

breaches of PACE Code C

positive acts =
- promise to release D early or give them bail if they confess
- threat to D’s family
- minimising significance of offence
- inducement to confess

omissions =
- interviewing a juvenile or vulnerable suspect without an appropriate adult
- failing to caution
- denying access to legal rights
- denying right to inform someone of arrest
- not allowing D appropriate rest at the police station

BUT: it must be something external to D and not e.g., D confessed because they thought they would get bail

Question 11

how is unreliability of a confession as a result of the thing said or done proven?

Answer 11

the test is objective = whether the thing said or done was, in the circumstances existing at the time of the confession,likely to have rendered any resulting confession unreliable

• the test is not whether the actual confession was unreliable - but rather whether any confession resulting from the thing said or done would be unreliable in the circumstances of the time
• any resulting confession must likely have been unreliable and not definitely
• prove causation of any such confession from the thing said or done

Question 12

can evidence obtained as a result of a confession excluded from evidence be admissible? (fruit of the poisoned tree)

Answer 12

• yes but the prosecution must not tell the jury that it discovered such evidence as a result of the confession
• yes if the confession is relevant to show that the defendant talks or writes in a certain way

Question 13

what is the process to exclude confession evidence in the magistrates court?

Answer 13

if application is under s 76 and s 78 =

• defence includes the application in its skeleton argument and prosecution must respond to it after it receives the skeleton argument
• s76 and s78 application is dealt with as a preliminary issue at the start of trial or in a preliminary hearing
• if magistrates decide to exclude the confession as a tribunal of law, they must exclude it from their minds when deciding on the issues of fact

if application is only under s 78 =

• magistrates have discretion to hear all the evidence then decide on admissibility, or decide on admissibility when the issue arises

Question 14

what is the process to exclude confession evidence in the crown court?

Answer 14

• D will include this issue in its defence statement
• judge will review this at the PTPH and order D to serve a skeleton argument, P to serve a response and direct where the arguments will be heard
• the application can be made either at a pre-trial hearing (suitable if confession is decisive for P’s case) or before opening the case to the jury and in the absence of a jury
• where facts are disputed between parties and judge must make findings of fact (e.g., if police induced D) = voir dire is held where judge hears evidence and witnesses in the absence of a jury - judge rules on facts then rules on admissibility

Question 15

what can D do if the judge rules that the confession is admissible?

Answer 15

D can still raise issues of unreliability or unfairness before a jury for them to decide whether to rely on the confession or attach weight to it