confessions and statements against interest Flashcards
confessions terminology and basic rule
confession= normally hearsay
it is admissible as a common law exception.
statements against interest
is a statement by the accused incriminating himself. does not amount to full confession can be really usful in rape when A admits having sexual intercourse with B as that establishes the mens rea.
confessions/ admissions whats the difference
admissions = civil, no need to rely on the exception to the rule against hearsay to justify admitting evidence s.2(1) civil evidence 1998 confession = crim
hartly v hm
confession are normally regarded as having a high probative value.
the confession of guilt by an accused person is prejudicial to his own interests and may thus be initially assumed to be true
CAUTION IN ASSERTING THEIR WORTH
brown v hm adv
Admissibility basic test
a confession will be indimissable where it has been unfairly obtained.
TEST=
it what has taken place fair or not
miln v cullen
Admissibility basic test
this requires fairness to the public to be taken into account as well as fairness to the acuused
jack v hm adv
Admissibility basic test
fairness and goodfaith are NOT necessarly synonymous
balloch v hm adv
Admissibility basic test
determining whether the statement was fairly obtained. it used to used to be thought that this was a matter for the jury. trial within trial.
Thompson v crowe
Admissibility basic test
determining whether statement has been fairly obtained
this should be decided by trial within a trial
judge must hear evidence as to admissibility of confession. Acussed will give evidence or will not testify BUT can still testify in trial within a trial.
the trial within trial evidence can only be used in extreme circumstances
plat v hm ad
Admissibility basic test
the burden of proof is on the crown to prov on th BALANCE of PROBS that the confession was obtained fairly
s.31 crim justice scot acts
when will a confession be regarded as being unfairly obtained
in police custody s.31 outlines rights
right to be informed of gen offence
right to say nothing apart from age birth ect
the right to have sol
right to inform someone else that suspect in custody
right to inform sol
suspects right to sol
chalmers v hm
the requirement to administer a caution
a caution is a warning that an individual is not required to say anything but anything they do say may be used in evidence. in what circumstances are the police required to admin one.
answer= depends at what stage the investigation is at
miln v cullen
the requirement to administer a caution
where an individual is not a suspect. no caution required
tonge v hm
the requirement to administer a caution
wjere an individual has become a suspect s caution is normally required
WIlson v HEYWOOD
the requirement to administer a caution:
test is one of fairness and so failure to caution does not necessarly render confession inadmissible
NO rule of law that there had to be a CAUTION what matters is the NECESSITY FOR A FAIR TRIAL
LB v HM
the requirement to administer a caution:
test is one of fairness and so failure to caution does not necessarly render confession inadmissible
unneseccary for the police to recaution if once already done for similar crime
irving v jessop
the requirement to administer a caution:
position of other individuals other than police officers who may not know how to admin caution
tv licence inspectors and the council
s.34 2016 act
once a person is in custody but has not been charged with an offence the police are entitle to question that person. the person is NOT BOUND to answer any question but must if asked provide their name ect
tonge v hm adv
where an accused is charged with an offence caution is required pre charge a reply to charge is admissiable if a caution is administered
Carmichael v boyd
further q regarding a charge not permitte.
cannot ask about things that the accused has already been charged with. but can ask about things that they are not yet charged.
s.35 and 36 2016 act
for further q
either seriousness of charge
the ecxtent to which questions could have been made earlier
whether it could have been FORSEEN that this info was important to disproving proving guilt
murphy v hm
can police delay moving from stage 2 to stage 3. it seems ye
hm v aiken
RENDER A CONFESSION UNFAIRLY OBTAINED:
ACCESS TO legal advice.
formally it was thought a lack of such access did not result in unfairness except in exceptional cases
hm v mclean
RENDER A CONFESSION UNFAIRLY OBTAINED
ACCESS TO legal advice.
BENCH of 7 said admission of confession without sol = PRECLUDE A FAIR TRIAL
cadder v hm
RENDER A CONFESSION UNFAIRLY OBTAINED.
ACCESS TO legal advice.
art 6 ECHR requires such access.
s. 14 read down to comply with echr. ECHR JURISPREDENCE WITHOUT SOL CONFESSION = INADMISSABLE
statement made during drug interview HELD inadmissable
s.32 and 33 crim justice 2016
RENDER A CONFESSION UNFAIRLY OBTAINED
ACCESS TO legal advice.
in police custody have a right to sok being present
the person may also be q eithout sol where they have waived their right
AMBROSE V HARRIS
RENDER A CONFESSION UNFAIRLY OBTAINED
ACCESS TO legal advice.
No coercion. not a convention right for sol at any part of police search BUT G was obvs detainee when Q by police.
The appelent convicted on evidence gathered at different stages of pre- arrest. Each sstage no right to sol. Devolution issue. when did DUTY arise to access sol and what use are the answers pre detention- 2 cases compatible for evidence pre arrest but in G = INCOMPATIBLE
AS SOON AS TAKNE INTO POLICE CUSTODY OR FREEDOM OF ACTION SUBTANTIALLY SIGNIFICANTLY CURTAILED THEY SHOULD BE ALLOWED ACCESS TO LAWYER PRE Q
MC GOWN VB
RENDER A CONFESSION UNFAIRLY OBTAINED:
TEST AS TO WHTHER THE WAIVER WAS GEN OR NOT.
ACCUSED WAIVE RIGHT FREE AND VOLENTARY TO SOL CONFESSION= ADMISSABLE
HM V JUDE
RENDER A CONFESSION UNFAIRLY OBTAINED.
voluntary after told he was going to stay in for whole weekend if didn’t confess NOT FREE AND VOLENTARY
PAUL V HM ADV
RENDER A CONFESSION UNFAIRLY OBTAINED
suggests that a suspect who was persuaded not to speak by lawyer . once lawyer left was then persuaded to confess by the police. = inadmissible even if the suspect was insitant
HM V HAWKINS
RENDER A CONFESSION UNFAIRLY OBTAINED
suspect allowed to speak to lawyer . police undermine lawyers advice= inadmissible. (police coax out confession)
LORD ADV REFERENCE 1
RENDER A CONFESSION UNFAIRLY OBTAINED
the manner of Q
improper bullying or pressure designed to break the will of the suspect or to force from him a confession ahgainst his will are NOT permitted
HARLEY V HM
RENDER A CONFESSION UNFAIRLY OBTAINED
police asked to make a statement if they didn’t police threaten to search home whilst husband of partner is there. = IMPROPER THREAT= INADMISSABLE
STEWART V HINGSTON
RENDER A CONFESSION UNFAIRLY OBTAINED
GAVE HER 2 OPTIONS.make a statement or go into custody hwere her kids will be taken in by social work. ADMISSABLE. JUST GIVING HER OPTIONS
THOMSON V HM ADV
RENDER A CONFESSION UNFAIRLY OBTAINED intoxication/illness menatal impairment drunk statement does not make it inadmissible as long as they understand what they are saying
in principle render a confession inadmissible but courts in practice have been reluctant to exclude confessions on this ground
HM V Higgins
RENDER A CONFESSION UNFAIRLY OBTAINED MENTAL IMPAIRMENT.
the police had delibereatly engeneered the placement of duspects in police station so as to facilitate eavesdropping = INDAMISSABLLE = A trap
MCCLORY V MACINNES
RENDER A CONFESSION UNFAIRLY OBTAINED the suspects physical condition. evidence was HELD inadmissible on the grounds that the accussed was not fully awake when Q
CONDONA
RENDER A CONFESSION UNFAIRLY OBTAINED. the suspects age.
14 year old girl persistently Q confesses eventually. Inadmissible. too young to be Q over length of time.
HM ADV V OLSSON
RENDER A CONFESSION UNFAIRLY OBTAINED. language difficulties.
DOESNT KNOW WHAT THEY HAVE TO CONFESS TO
hm v keen
OVERHEARING OR INTERCEPTING A STATEMENT
focus of these cases is what is overheard in police station.
shouted confession overheard inadmissable
jamieson v annan
OVERHEARING OR INTERCEPTING A STATEMENT acussed in cells confession overheard officer listen in with another officier and recorrf the confession = voluntary and NO trap by police. CONFESSION ADMISSABLE
hm v graham
OVERHEARING OR INTERCEPTING A STATEMENT
The police clearly should not be able to use undercover or a third party to evade rule on cautioning
Police became aware that they wanted to meet an associate. they wired up associate. GRAHAM = INADMISSABLE key evidence was unfairly obtained.
As wired associate was putting q on behalf of the police he was tricked into answering the Q was therefore inadmissable
hm v campbell
OVERHEARING OR INTERCEPTING A STATEMENT:
but is there snything wrong with police listening in on convo stongly criticied in WEIR V JESSOP.
suspect refused to speak point blank to the police agreed to do an interview with journo. police officer got wind and was introduced as collegue (NOT POLICE) campble statement = INADMISSABLE suspect should have been cautioned
WEIR V JESSOP ARGUE NO TRAP AS ALREADY TO CONFESS AUTHORITIES WHEREJUST THERE WHEN THEY DID.
LECTURER- BOTH CAMPBEL AND HIGGINS ARE APP ANY TRAPS = INADMISSABLE
brown v scott
circumstances where an individual is required to make a statement by virtue of stat. prov
right not to incriminate and right to silence impact the stat. on road traffic offences sleg pblidged the keeper of motor vehicle to declare that they were the driver when commited the offence HCJ fundamental no one obl incrim themselves is leg says the person on Q has to infer the answer cannot be used against ehm allowed appeal FAIR TRIAL = APSOLUTE subright = NOT ABSOLUTE SET OUT UNDER ART6 AND CAN BE QUALIFIED.BY NATIONAL LEG.
CLEAR AND PUBLIC OBJECTIVE WITH PROPER PURPOSE MEANS NEEDS TO BE ICRIMINTORY AND ULTIMATE PENTALTY= MODERATE PC OBLIGED TO INFER= ADMISSABLE
foster v farrel
circumstances where an individual is required to make a statement by virtue of stat. prov A CAUTION IS NOT REQUIRED AND WOULD BE IN APPROPRIATE GIVEN THE REQUIREENT TO ANSWER.
a caution would usually be an entirely inappropriate do not have the right to remain silent.
styr v hm
circumstances where an individual is required to make a statement by virtue of stat. prov
in theory a statement made in a foster v farrel circumstance can still be held inadmissable
mixed statement def
when a statement constits of both incriminarot and expultory elements.
so rape 0100.
A states
I had sex with B (incrim statement establishes mensrea)
BUT it was consensual and I left her at 2200. (expultory statement)
mccutcheon v hm
mixed statements
considerable difficulties with admissions
9 judges statute accused can lead evidence if purely expultorry anything inbetween can be led
CONTENTS OF MIXED STATEMTS CAN BE LED
carloway review
recommened that all statements by accused should be admissible in evidence
109 crim justice
when making a statement to police officer: is not inadmissible as evidence of any fact contained in the statement on account of the evidence being hearsay
