Confessions and unlawfully obtained evidence (W10)

Question 1

F18.1 - Definition of a confession

Answer 1

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.

Question 2

F18.1 - General rule on confessions

Answer 2

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.

Question 3

F18.2 - Confession has to be made by the accused

Answer 3

• 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.

Question 4

F18.3 - Guilty pleas and pleas in mitigation

Answer 4

• 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• Where such a plea has been retracted, the court may decide that it should not be given in evidence by the prosecution because of the adverse effect on the fairness of proceedings, invoking s.78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.

Question 5

F18.4 - Confessions otherwise than in words

Answer 5

• 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.

Question 6

F18.5 - Partly and wholly exculpatory statements

Answer 6

• Statements which are part confession and part exculpation are confessions
• Whether words amount to a partial confession is a question of fact

Question 7

F18.8 - Principles of admissibility under the PACE 1984, s.76

Answer 7

(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.

Question 8

F18.9 - when the prosecution has to prove the admissibility of a confession

Answer 8

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.

Question 9

F18.10 - Definition of oppression

Answer 9

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).’

Question 10

F18.11 -14 - scope of ‘oppression’

Answer 10

• 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.

Question 11

F18.16 - Relevance of character and attributes of accused

Answer 11

• 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

Question 12

F18.17 and 18 - Exclusion for unreliability

Answer 12

• 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.

Question 13

F18.19 - ‘Anything said or done’

Answer 13

• 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.

Question 14

F18.20 - Words or actions of the accused

Answer 14

• 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

Question 15

F18.24 - Breach of PACE Codes

Answer 15

• 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.

Question 16

F18.33 - s.78 PACE 1984

Answer 16

(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.

Question 17

F18.33 - Exclusion under s.78

Answer 17

• 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.’

Question 18

F18.34 and 35 - s.78 and the Codes of Practice

Answer 18

• 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.

Question 19

F18.36 - Nature and extent of breach

Answer 19

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.

Question 20

F18.37 - Breach of right to legal advice

Answer 20

• 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.

Question 21

F18.38 and 39 - Breach of interview procedures

Answer 21

• 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

Question 22

F18.40 - Breaches not triggering exclusion

Answer 22

• 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.

Question 23

F18.42 - Bad faith

Answer 23

• 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.’

Question 24

F18.63 - The voir dire and PACE 1984, s.76

Answer 24

• 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.

Question 25

F18.64 - Voir dire in summary trials

Answer 25

• s.76 requires magistrates conducting a summary trial to hold a voir dire to determine admissibility where the defence, before the close of the prosecution case, represent to the court that the confession was obtained in breach of s.76(2).
• As judges of both fact and law, a ruling that a confession is to be excluded will mean they will have to put the objectionable material out of their minds when considering guilt.

Question 26

F18.68 - The voire dire and PACE 1984, s.78

Answer 26

• Defence objections should be made before the evidence is given.
• It does not follow that a voir dire should always be held; it has been said in summary trial that the defence have no right to a voir dire simply in order to determine a preliminary issue under s.78
• However, in many cases it is convenient to investigate the submission in this way, particularly where the evidence is also challenged under s.76

Question 27

F18.83 - Proving confession by other hearsay exceptions

Answer 27

CJA 2003, s.128: ‘Nothing in this Chapter makes a confession by a defendant admissible if it would not be admissible under s.76 PACE 1984’

Question 28

F18.85 - Evidence yielded by inadmissible confessions

Answer 28

PACE 1984, s.76

• (4) That fact that a confession is wholly or partly excluded in pursuance of this section shall not affect the admissibility in evidence–
  (a) of any facts discovered as a result of the confession; or
  (b) where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, of so much of the confession as is necessary to show that he does so.
• (5) Evidence that a fact to which this subsection applies was discovered as a result of a statement made by an accused person shall not be admissible unless evidence of how it was discovered is given by him or on his behalf.
• (6) Subsection (5) applies–
  (a) to any fact discovered as a result of a confession which is wholly excluded in pursuance of this section; and
  (b) to any fact discovered as a result of a confession which is partly so excluded, if the fact is discovered as a result of the excluded part of the confession.

Question 29

F18.86 - Discovery of facts

Answer 29

• The rejection of certain confessions in evidence ‘has no application whatever as to the admission or rejection of facts, whether the knowledge of them be obtained in consequence of an extorted confession, or whether it arises from any other source; for a fact, if it exists at all, must exist invariably in the same manner, whether the confession from which it is derived be in other respects true or false’
• Some difficulty may arise as to where ‘confession’ ends and ‘facts discovered as a result of it’ begin.
• Words, documents or conduct which comes within the definition of ‘confession’ under s.76 cannot be treated as ‘facts’ for the purposes of s.76(4)
• Thus, a filmed re-enactment of a murder should be regarded as a confession statement rather than as independent facts.

Question 30

F18.87 - Confession relevant to show speech, writing or expression

Answer 30

• Case in which a body was found with a misspelled note. The accused was asked to write the same thing and misspelled it in the exact same way. ‘It cannot make any difference to the admissibility of handwriting whether it is written voluntarily or under compulsion of threats.’
• s.76(4) may also be used, for example, where a tape-recorded confession is ruled inadmissible, but the voice of the accused can be heard speaking with an unusual speech impediment which was also described by the victim, or with a particular local accent.
• s.76(4)(b) permits the prosecution to adduce only ‘so much of the confession as is necessary to show’ the relevant feature, but in some cases it may be impossible to do this without the jury becoming aware that a confession has been made. In such cases it will have to be considered whether the risk of prejudice can be overcome by a direction as to the purpose for which the evidence has been adduced, or whether the discretion of the court to exclude evidence under s.78 or the common law should be exercised.

Question 31

F18.89 - Evidence yielded by confession excluded under s.78

Answer 31

• s.76(4) applies only to matters coming to light as a result of a confession excluded under s.76 itself.
• Where the confession is excluded in the discretion of the court under s.78, no statutory rule applies, but common law suggests that evidence discovered in consequence is admissible.

Question 32

F2.1 - General rule of admissibility

Answer 32

• Where evidence has been obtained illegally, the court may exercise its power in appropriate circumstances to stay proceedings.
• However, where proceedings have not been stayed then, subject to exceptions, evidence obtained unlawfully, improperly or unfairly is admissible as a matter of law.
• ‘the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained.’
• Therefore, evidence has been obtained by:
  (a) Theft
  (b) Unlawful search of persons
  (c) Unlawful search of premises
  (d) The use of agents provocateurs
  (e) Eavesdropping
  (f) Invasion of privacy

Question 33

F2.3 - Confessions

Answer 33

see s.76

Question 34

F2.4 - Evidence obtained by torture or inhuman or degrading treatment

Answer 34

• If it is represented to the court that a confession was or may have been obtained by oppression, the court shall not allow the confession to be given in evidence against the accused except insofar as the prosecution prove beyond reasonable doubt that the confession was not so obtained.
• At common law, there is a broader general principle that evidence obtained by torture is inadmissible.
• Torture was not defined, but a definition adopted by Parliament in the CJA 1988, namely the infliction of severe pain or suffering on someone by a public official in the performance or purported performance of official duties, is preferred.
• A conventional approach to the burden of proof is inappropriate in the context of a hearing before the Special Immigration Appeals Commission (SIAC); instead, it should be on a balance of probabilities that it was obtained by torture.

Question 35

F2.5 - Evidence obtained by inhuman or degrading treatment contrary to the ECHR Article 3

Answer 35

• Incriminating real evidence recovered as a direct result of torture should never be admitted, but evidence secured as an indirect result of statements made and obtained by inhuman treatment may be admitted if it is only an accessory in securing a conviction and its admission does not compromise defence rights.
• It is arguable that evidence should be excluded if obtained as a result of secret detention, but the argument for exclusion is not as strong as in relation to torture.

Question 36

F2.7 - Overview of PACE 1984 s.78

Answer 36

(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.
- Applications should be made before the evidence is adduced, and if reference is made to it in the prosecution opening speech, before that speech.
- A discretionary power
- However, strictly speaking it is not really a discretion because if a court decides that admission of the evidence would have such an adverse effect on proceedings, it cannot logically exercise a discretion to admit it.
- CoA highly unlikely to interfere with decision of trial judge; only if the judge has not exercised the discretion at all or has done so but in a Wednesbury unreasonable manner.
- True test is whether the admission of the evidence renders the conviction unsafe.

Question 37

F2.8 - General application of s.78

Answer 37

May be used to attempt to exclude any evidence on which the prosecution propose to rely.

Question 38

F2.9 - Scope for exclusion wider under s.78 than at common law

Answer 38

• Evidence open to exclusion at common law, i.e. (a) any admissible evidence which is likely to have a prejudicial effect out of proportion to its probative value, and (b) admissions, confessions and other evidence obtained from the accused after the commission of the offence by improper or unfair means, and which might operate unfairly against the accused, may be excluded either at common law or pursuant to s.78
• s.78 is not confined, like the common law power, to ‘admissions, confessions and generally with regard to evidence obtained from the accused after the commission of the offence’ but extends to any evidence on which the prosecution propose to rely.
• s.78 is also not necessarily confined like the common law power to cases in which those who obtained the evidence acted mala fide.

Question 39

F2.13 - Test for exclusion

Answer 39

• s.78(1) directs the court to have regard to all the circumstances, including those in which the evidence was obtained.
• The court may have regard to any unlawful, improper or unfair conduct, e.g. breaches of the ECHR or the provisions of PACE 1984
• However, breaches do not automatically mean the evidence will be excluded unless it affects the fairness of proceedings

Question 40

F2.32 - Other statutory provisions

Answer 40

• s.101(3) CJA 2003 confers a discretion to exclude otherwise admissible evidence of the bad character of an accused, having regard to the particular factors set out in s.101(4)
• s.126 CJA 2003 confers a discretion to exclude otherwise admissible hearsay statements, whether adduced by the prosecution or defence

Question 41

F2.36 - Discretion to exclude at common law

Answer 41

A judge, as part of his or her inherent power and overriding duty in every case to ensure that an accused gets a fair trial, always has a discretion to exclude otherwise admissible prosecution evidence if, in the judge’s opinion, its prejudicial effect on the minds of the jury outweighs its true probative value.

Question 42

F18.30 - Common law discretion to exclude confessions

Answer 42

• s.82 PACE 1984: ‘Nothing in this Part of this Act shall prejudice any power of a court to exclude evidence at its discretion.’
• Prior to the enactment of the act, exclusion of confession evidence at common law was recognised in two contexts:
  (1) the exclusion of unreliable confessions, the prejudicial effect of which could be said to outweigh their true probative value; and
  (2) the exclusion of confession evidence, the admission of which might operate unfairly against the accused.
• The common law powers are unlikely to be resorted to in practice because the scope of s.78 is wider.
• The situation in which they are most likely to be used is where a judge becomes aware, after a confession has been admitted in evidence, of circumstances suggesting that it should not have been.

Question 43

F2.11 - s.78 Procedure

Answer 43

• The issue of unfairness may be raised by counsel for any accused against whom the evidence may be used by the prosecution.
• Doubtful whether s.78 can in any circumstances entitle the judge to withdraw evidence or direct the jury to acquit when the judge had not been invited to refuse to allow the evidence to be given.
• Where a judge has excluded evidence on which the prosecution propose to rely but at a later stage in the trial in the judge’s opinion the balance of fairness shifts, there is a discretion to reconsider the ruling and admit the evidence.
• Usually there should be a voir dire.
• However, where a question arises as to the admissibility of ID parade evidence, it has been held that in general the judge should decide on the basis of depositions, statements and submissions of counsel.

Question 44

F1.44 - Matters which may fall to be determined in a hearing on the voir dire

Answer 44

(a) the competence of a witness
(b) the admissibility of a confession or some other variety of admissible hearsay
(c) the admissibility of a recording
(d) the admissibility of a statement contained in a document produced by a computer
(e) the admissibility of a plea of guilty against an accused who subsequently changes their plea to NG

Question 45

F1.47 - Voir dires at summary trial

Answer 45

• There is not usually a voir dire in proceedings before magistrates, because the function of the voir dire is to allow the tribunal of law to decide a point of law in the absence of the tribunal of fact, and magistrates are judges of both fact and law.
• It is impossible however to lay down a general rule as to when the question of admissibility should be determined by magistrates, as it depends on each case

Question 46

F1.49 - Challenging admissibility under s.78 on the voir dire in the mags

Answer 46

• Where the defence make a submission that the magistrates should exercise their discretion to exclude evidence under s.78, they are not entitled to have that issue settled as a preliminary issue in a voir dire
• In most cases it is better for the whole of the prosecution case, including the disputed evidence, to be heard first.
• A voir dire may be appropriate if the issues are limited, but not if it is likely to be protracted and to raise issues which will need to be re-examined in the trial itself.
• Where there is a s.78 challenge to evidence of statements made by an accused, it is normally desirable in the interests of justice for the court to hear the evidence and to have canvassed in questioning any circumstances which would render admission unfair. Where the justices resolve to exclude it, after seeking the views of the parties, they should then consider whether the substantive hearing should be conducted by a different bench.

Question 47

D22.44 - Problem with voir dire at mags

Answer 47

• The procedure to be followed where the defence object, during the course of a summary trial, to proposed prosecution evidence, raises the difficulty that the magistrates are the judges of both fact and law.
• The problem is mitigated to some extent by the availability of pre-trial rulings but these will not avail where issues of admissibility are raised for the first time during the course of the trial itself.
• The stage of the trial at which the magistrates consider admissibility is a matter for their discretion.
• Delaying the determination of admissibility of a confession until after the conclusion of the prosecution evidence may be unfair to the defence, in that the accused will not be able to give evidence about the alleged irregularities in the obtaining of the evidence unless he or she testifies and thus becomes exposed to cross-exam about the general issues. In taking the decision what evidence to call, the defence advocate ought also to know whether crucial evidence is to be part of the case against the accused
• It is impossible to lay down any general rule; a preliminary point e.g. the admissibility of a document can be decided straight away. Other points may require a decision at a later stage, possibly after further argument.