Confessions and unlawfully obtained evidence (W10) Flashcards
F18.1 - Definition of a confession
PACE 1984, s.82: ‘confession’ includes 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.
- includes an informal admission to a friend or colleague
- most confessions however are made to a person in authority and such confessions are the most likely to be challenged.
F18.1 - General rule on confessions
PACE 1984, s.76:
A confession made by an accused is admissible insofar as it is relevant to any issue in the proceedings and is not excluded on the grounds of oppression or in consequence of anything said or done conducive to unreliability. The rule of admissibility extends to the co-accused as well as the prosecution.
F18.2 - Confession has to be made by the accused
- Only a confession made by an accused may be given in evidence against him
- Where the only proof that the accused made the statement comes from the confession itself, it should not be admitted.
- The jury should be given a clear direction not to rely on a statement unless they are sure that it was the defendant who made the statement.
F18.3 - Guilty pleas and pleas in mitigation
- A guilty plea constitutes a confession for the purposes of PACE 1984, s.82(1)
- Where such a plea has been retracted, the court may decide that it should not be given in evidence by the prosecution because of the adverse effect on the fairness of proceedings, invoking s.78
- A retracted plea may also be relied upon a confession by a co-accused, to which the court’s power of discretionary exclusion under s.78 does not apply
- An admission made by an accused in other proceedings would similarly constitute a confession and could be relied upon provided that it complies with the provisions of s.76(2) and that it is not excluded under s.78.
- A plea in mitigation made by counsel on behalf of a client who has been convicted following a NG plea should not be understood as a confession by the convicted person through counsel.
F18.4 - Confessions otherwise than in words
- Confession may include conduct such as a nod of acceptance by the accused, a thumbs up sign
- Has been held that an accused’s re-enactment in a film of what they did can be viewed as a confession
- Conduct which is not intended to convey guilt cannot be a statement and therefore is not a confession, e.g. driving away at speed from the scene of an accident, though evidence of such conduct would be relevant and admissible.
F18.5 - Partly and wholly exculpatory statements
- Statements which are part confession and part exculpation are confessions
- Whether words amount to a partial confession is a question of fact
F18.8 - Principles of admissibility under the PACE 1984, s.76
(1) In any proceedings a confession made by an accused person may be given in evidence against him insofar as it is relevant to any matter in issue in the proceedings and not excluded by the court in pursuance of this section.
(2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained–
(a) by oppression of the person who made it; or
(b) 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,
the court shall not allow the confession to be given in evidence against him except insofar as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.
(3) In any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, the court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in subsection (2) above.
F18.9 - when the prosecution has to prove the admissibility of a confession
They do not have to prove it unless either (a) the defence represents that it is inadmissible under s.76(2), or (b) the court of its own motion requires proof of admissibility under s.76(3). If in either case the prosecution cannot prove admissibility beyond reasonable doubt, the confession must be excluded, notwithstanding that it may be true: the court has no discretion in the matter. A court should be particularly vigilant to scrutinise a confession that is the sole evidence relied upon by the prosecution. A confession which is inadmissible under s.76 should not be used as the basis for a formal caution.
F18.10 - Definition of oppression
PACE 1984 s.76(8): ‘In this section ‘oppression’ includes torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture).’
F18.11 -14 - scope of ‘oppression’
- Has to be determined by the common sense wording of the Act
- Treatment which would have fallen within the wider definition of oppression at common law will now fall to be dealt with under the ‘reliability’ head of exclusion.
- ‘Oppression’ is to be given its ordinary dictionary meaning of ‘exercise of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc., the imposition of unreasonable or unjust burdens.’
- Almost inevitably involves some impropriety on behalf of the interrogator but it does not follow that all impropriety necessarily involves oppression.
- Use of bad language would not be oppression
- However, unduly hostile questioning may be oppressive: it is a question of degree
- Exclusion for oppression is likely to be reserved for rare cases where an accused has been subjected to misconduct of a deliberate and serious nature.
F18.16 - Relevance of character and attributes of accused
- The nature of oppression varies according to the character and attributes of the accused.
- An experienced professional criminal therefore might expect a vigorous interrogation.
- It might be oppressive to put question to an accused who is known to be mentally ill so ‘skilfully and deliberately’ to induce a delusionary state.
- Right to take into account someone’s intelligence, knowledge and experience
F18.17 and 18 - Exclusion for unreliability
- A hypothetical question: not whether this confession is unreliable, but whether any confession which the accused might make in consequence of what was said or done was likely to be rendered unreliable.
- Evidence as to this must relate to the period before, or at the time when, the confession is made: the judge must ‘stop the clock’ and consider the issue of reliability at that point in time.
F18.19 - ‘Anything said or done’
- s.76(2) obliges the judge to consider everything said or done and not to confine the inquiry to a narrow analysis
- This is an indication that the confession may be inadmissible, notwithstanding that the police have not behaved improperly
- e.g. a psychopathically disordered woman of low normal intelligence heard her lover confess to a murder. As this experience may have led her to make a false confession out of a child-like desire to protect her lover, her statement was excluded under s.76(2)
- In an extreme case, it was D’s solicitor who, by intervening in the interview in an apparent attempt to secure a confession, rendered the confession unreliable.
- Where the solicitor provides proper legal advice to the client, this will not normally be a basis for excluding under s.76(2)(b).
- A promise by a shopkeeper not to involve the police gave rise to the inference that anything said in consequence was unreliable.
- A confession volunteered without anything being said or done clearly would not fall within s.76 e.g. where an appropriate adult was the ‘unwilling recipient of unsolicited confessions’ by an accused, and nothing was said either by the adult or anyone else that would render the confessions unreliable.
F18.20 - Words or actions of the accused
- A confession cannot be rendered inadmissible by reason only of something said or done by the accused.
- e.g. a defendant could not rely on the fact that they were confessing in order to attempt to get bail, or if they were an addict and would say or do anything to gain release so as to feed their addiction
- A self-induced incapacity e.g. having taken drugs is clearly relevant to the issue of discretionary exclusion under PACE s.78
F18.24 - Breach of PACE Codes
- It is common for the defence to allege that the ‘something said or done’ includes a breach of PACE 1984 or the Codes of Practice
- Such a breach will not lead to automatic exclusion.
F18.33 - s.78 PACE 1984
(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.
(2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.
F18.33 - Exclusion under s.78
- The power may be used in respect of confession evidence tendered by the prosecution
- CoA will not interfere with the exercise of a trial judge’s discretion to admit evidence under s.78 unless satisfied that the decision was perverse.
- It is for the accused to persuade the court that the evidence of a prosecution witness ought to be excluded under s.78 and the burden is ‘no higher than the balance of probabilities.’
F18.34 and 35 - s.78 and the Codes of Practice
- Codes of practice under PACE are admissible in evidence in criminal and civil proceedings
- Breach of a relevant code provision does not lead to automatic exclusion of evidence: the question is whether the admission of the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.
- Breach of a code is in many ways an important factor in deciding whether to exclude evidence.
F18.36 - Nature and extent of breach
If there are significant or substantial breaches of the provisions of the code, then prima facie the standards of fairness set by Parliament have not been met. It would seem to follow that this cannot help but have an adverse effect on the fairness of proceedings. This does not mean that in every case of significant or substantial breach the evidence will be excluded. The task of the court is to consider whether there would be such an effect that justice requires the evidence to be excluded.
F18.37 - Breach of right to legal advice
- In assessing the effect on the fairness of proceedings of a breach, it is relevant that the right of access to legal advice is ‘fundamental’ and that it is regarded as of great importance in the ECtHR.
- Save for when compelling reasons may exceptionally justify denial of access to a lawyer, the prosecution cannot lead and rely upon evidence of anything said by the accused without the benefit of legal advice during questioning under detention at a police station.
- It is not necessary to apply quite such strict a principle to the questioning of a person not yet detained.
- This poses particular issues for safety interviews conducted under the Terrorism Act 2000.
- The key questions are (i) whether there existed compelling reasons for the restriction of access, and (ii) whether, viewing the proceedings as a whole, the trial was fair. The extent to which ‘compelling reasons’ were lacking would ‘weigh heavily’ in the balance of finding a violation of the ECHR, but their absence by itself was not sufficient to amount to a violation.
- Where legal advice is waived, the waiver should be voluntary, informed and unequivocal
- One case: no obligation to exclude a confession because the interviews were properly conducted, and the only function of legal advice would have been to remind D of rights of which he was already well aware.
- Another case: failure to inform D, a foreigner, of his right to legal advice was particularly significant given his lack of familiarity with police procedures. His confession ought to have been excluded.
- Minor defects in the communication of right to legal advice that do not bear on the exercise of informed choice by the suspect cannot give rise to unfairness.
F18.38 and 39 - Breach of interview procedures
- Breaches of provisions of Code C has also tended to lead to the exclusion of evidence under s.78
- It is desirable that the provisions of Code C that are designed to ensure that interviews are fully recorded and the suspect afforded an opportunity to contest the record be ‘strictly complied with’, and that the courts would not be slow to exclude evidence obtained following ‘substantial breaches.’
- Other provisions which have been held capable of exclusion: questioning without caution, breach of right to have an appropriate adult present, breach of right of accused to know why they had been arrested and ‘at least in general terms the level of the offence in respect of which he is suspected’
- A common situation is failure of officers to appreciate that something is an interview and therefore going on to breach multiple parts of the Code
F18.40 - Breaches not triggering exclusion
- Breaches may occur which are insufficiently significant or substantial to trigger s.78, e.g.:
- failure of a police officer to show the suspect a note of a conversation which the suspect had requested to be kept ‘off the record’
- Failure of an interview to observe the recording provisions that prevent fabrication of interview would have been regarded as sufficient for exclusion if it were not for the fact that D’s solicitor’s clerk was present during the alleged conversation.
- Failure to caution when found with drugs at Customs was not fatal because those stopped and questioned in Customs already are aware of the formality of the occasion.
F18.42 - Bad faith
- It is not the function of the court to use s.78 to discipline the police.
- However, the presence of bad faith where the police have acted in breach of the Act or Codes is a factor making it more likely evidence will be excluded.
- Although bad faith may make substantial or significant that which might not otherwise be so, the contrary does not follow. Breaches which are in themselves significant and substantial are not rendered otherwise by the good faith of the officers concerned.’
F18.63 - The voir dire and PACE 1984, s.76
- Where the defence represent that a confession on which the prosecution propose to rely was, or may have been, obtained in such a way as to render it inadmissible in evidence, the court shall not allow the confession to be given in evidence except insofar as the prosecution prove to the court beyond reasonable doubt that the confession was not so obtained.
- s.76(3) provides that the court may of its own motion require the prosecution to prove this.
- The voir dire is the correct procedure where objection is taken to the admission of a confession. It enables the factual issues to be resolved in the absence of the jury, with the benefit of the accused’s evidence if they wish to testify.