confessions

Question 1

general context

Answer 1

• A key factor in a trial is the manner in which the accused has responded to the questioning they received from the police
• Police treatment and evidence are intrinsically linked, as is the protection of the D to ensure that the evidence used has been obtained fairly and effectively

Question 2

The goldmine of confessions

Answer 2

• To be able to achieve an incriminating statement from suspect under questioning is a desirable outcome, and therefore the need for protection is paramount

Question 3

Balancing hearsay vs confessions

Answer 3

• Confessions are interesting because they do equal an infringement of the rule agsinst hearsay
• However, a confession is admissible at common law as evidence of the truth of its contents and people do not generally make untrue statements against themselves

Question 4

Modern test: a move away from common law

Answer 4

• S76 and 76a PACE 1984

Question 5

S76(1)

Answer 5

• A confession made by an accused person is admissible insofar as it is relevant to any matter in issue at proceedings and is not excluded by the court
• Confession may be used as evidence of any issues, including any matter favourable to it’s maker

Question 6

S76(2)

Answer 6

• The prosecution can be required to prove, beyond reasonable doubt, that the confession that it proposes to introduced in evidence was not obtained by oppression or in circumstances of unreliability

Question 7

What is a confession?

Answer 7

• S82(1) PACE 1984 defined a confessions as “any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and made in words or otherwise.”
• A confession can be oral, written down, in conduct or in any other way of communication
• A suspect could make a confession by demonstrating how they picked a lock or how they stabbed a victim

Question 8

Informal?

Answer 8

• It also encompasses any informal admission, and immaterial to whom the confession is made to
• Many are made to formal bodies such as the police or HMRC, a confession made to anyone such as spouse, friend, social worked or police is subject to the same test of admissibility

Question 9

Rumping v DPP [1964]

Answer 9

• A letter written by the D to his wife was held to constitute a confession, and similarly a letter to a victim apologising would also be considered a confession

Question 10

R v Ellaray [2003]

Answer 10

• D convicted of rape solely on the basis of admissions made to probation officer during the preparation of a pre sentence report
• The appellant claimed the judge was wrong to admit the statements, considering the relationship between an offender and probation staff
• CoA held that information like this should only be relied on if it was within the public interest to do so
• There are key differences between police and probation, and while in this case it was dismissed
• Potentially evidence like this could be used, as long as S78 PACE could ensure that there was no unfairness

Question 11

Content of the confession

Answer 11

• Confessions can be incredibly helpful or hold miniscule amounts of incriminating information
• Using S82(1) to define confessions as statements allows us to consider sections which incriminate, when not all of a confession may

Question 12

The principle of exclusion

Answer 12

• S76(1) PACE
• “in any proceedings a confession made by an accused person may be given in evidence against him insofar as it relevant to the matter in issue.”

Question 13

Protecting a suspect

Answer 13

• A custody record, taping and videotaping of interviews with suspects allow the defence to ensure that there has been no violation of the rules within S76 and S78 PACE
• Any breach of these conditions may be grounds for excluding a confession

Question 14

2 key elements

Answer 14

• 1. As soon as a police officer has grounds to suspect that a person has committed an offence, a caution must be given:
• “You do not have to say anything. But it may harm your defence if you fail to mention something which you later rely on in court. Anything you do say may be given in evidence.”
• 2. An interview with a suspect should normally take place in a police station soon after arrest, where the suspect has all the protections of PACE

Question 15

Why have all these safeguards

Answer 15

• The importance of these two principles stems form the fact that an arrest and caution should only ever happen when an officer has reasonable grounds to suspect involvement in an offence
• Any questioning on the street that precedes arrest should only be of the kind that gives the reasonable grounds for arrest
• The questioning should cease once arrest take place and should only continue at the police station

Question 16

The scope of s76(2)

Answer 16

• The court will not accept confessions which may or may not have been obtained;
  1. By oppression of the person who made it
  2. In consequence of anything said or done which was likely in the circumstances existing at the time

Question 17

The exclusions

Answer 17

• Effectively the provision gives two grounds which evidence can be excluded; oppression and unreliability
• The onus is on the defence to represent to the court that either one of these grounds applies
• The court can exercise it’s own powers to assess the appropriateness of a confession

Question 18

Criteria for admissibility

Answer 18

 The prosecution may be required to jump three ‘hoops’ before a confession can be admitted in evidence
 1: Oppression
 2: Unreliability
 3: General discretion (adverse effect)

Question 19

Oppression

Answer 19

• Oppression includes ‘torture, inhuman, or degrading treatment and the use of threat of violence.’
• Torture comes from Article 3 ECHR
• Definition of oppression is not exhaustive – and the CoA held that it is to mean the usual meaning: ‘exercise of authority or power in a burdensome, harsh or wrongful manner.’

Question 20

Inhumane treatment?

Answer 20

• ECHR have defined as covering ‘at least such treatment as deliberately causes severe suffering, mental of physical.’
• Prolonged wall standing, hooding, subjection to white noise, deprivation of sleep and rationing of food and drink by British security forces in N I were degrading as they caused the victims feelings of fear, anguish and inferiority
• Also included physical and psychological treatment – anything which has happened in Guantanamo Bay and Abu Ghraib Prison would fall under oppression
• This, interestingly may explain why the US weren’t keep on British prisoners being held at GB to be repatriated as their confession evidence would certainly be excluded from court

Question 21

Method of questioning

Answer 21

• This is not just limited to physical conditions, the way in which a person is questioned can come into play here
• There appears to need to be some evidence of an abuse of power which oppression ‘actively applied (R v Miller [1986])

Question 22

A matter of degree

Answer 22

• The courts do have discretion when looking at this – oppression through questioning
• It is down to how aggressive and how hostile the interviews are. And when a victim is vulnerable it is far more likely to cross that line

Question 23

The fulling test

Answer 23

• Was a confession obtained by oppression and was the conduct used burdensome, harsh or cruel?
• Note that trial judges can take in the competency of the suspect, the same way they can the vulnerability

Question 24

Unreliability

S76 (2) (b) PACE:

Answer 24

A confession is inadmissible if:
“It was 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 in consequence thereof”
- Used when confessions are held to have been made in circumstances making them likely to be unreliable included:
- A lack of proper rest
- No caution
- Where the police failed to caution
- A confession may be held to be unreliable if it was made as a result of an inducement
- This includes anything that makes the suspect believe that they would receive favourable treatment or anything like a promise for the future

Question 25

Who needs to say or do something

Answer 25

• Need not emanate from the police, although it is the most common
• Solicitors may frequently be guilty of this and render confession invalid
• A threat by a parent, employer promises, or something said by anyone in a position of power

Question 26

Discretionary exclusion

Answer 26

• A fair trial does not mean a trial that is free from all possible detriment
• When using S78, assessing unfairness and the admissibility of evidence will require the judge to consider extent and degree
• This is a discretion and not a duty

Question 27

The standard

Answer 27

• Effectively, to ensure that the discretion is sufficient, the test is on of Wednesbury unreasonableness:
• Est in Wednesbury [1984], a decision is unreasonable if it is so unreasonable that no reasonable person acting reasonably could have made it
• General opinion is that each case is different and judges may take different approaches in the proper execution of their judgement

Question 28

Key points

Answer 28

• Confession evidence can be excluded on 3 grounds – oppression, unreliability and discretion
• Facts obtained as a result of a confession which was excluded are admissible as long as no connection is made in court
• S76 and 78 define these areas and control what is oppression or unreliability
• Very much dependant on the use of police and their police powers