Confessions and unlawfully obtained evidence

Question 1

What is the definition of a confession under PACE?

Answer 1

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

Question 2

Give 3 examples of a confession

Answer 2

• informal admission to a friend or colleague
• a plea of guilty
• an admission to a police officer during interview

Question 3

How can a confession be made in a way other than in words?

Answer 3

• nod of acceptance

- thumbs up sign

Question 4

Is a confession made outside of court generally admissible?

Answer 4

No, as it is a hearsay statement and therefore generally admissible.

Question 5

What are the 2 ways a confession can be made admissible?

Answer 5

s76(1) PACE: admissible for the prosecution against the defendant provided it is not excluded under s76(2)
s76A(1) PACE: admissible for the co-defendant provided it is not excluded under s76A(2)

Question 6

Who is a confession admissible against?

Answer 6

A confession is only admissible against its maker

Question 7

When does the prosecution have to prove the admissibility of a confession?

Answer 7

• when the defence challenge the admissibility (e.g. under s76(2)(a) or (b)
• the court of its own motion required proof of admissibility

Question 8

When will section 76(2) be used?

Answer 8

To exclude a confession which has been obtained:

(a) by oppression
(b) in consequence of anything said or done which was likely, in the circumstances, to render unreliable any confession that might be made by the defendant in consequence of the thing said or done

Question 9

If a confession is made in the interview and ruled inadmissible under s76(2), can a subsequent confession made in another interview that was conducted properly be admissible?

Answer 9

No, unless the first interview can be proved to have been conducted properly.

Question 10

Does a breach of PACE codes during questioning render a confession unreliable?

Answer 10

Not necessarily

such a breach does not automatically render the confession inadmissible, though it may on its own or with other facts amount to something said or done

Question 11

How does the nature of oppression affect the admissibility of a confession?

Answer 11

the nature of the oppression varies according to the character and the attributes of the accused. An experienced professional criminal might expect to be able to withstand a vigorous interrogation. a 12 year old child with learning difficulties may not have the same ability to deal with such interrogation.

Question 12

Which procedure is used to determine the admissibility of confessions?

Answer 12

The voir dire procedure

Question 13

Who bears the burden of proof when a question of the admissibility of confessions is raised?

Answer 13

Burden on the prosecution/co-accused to prove the confession was not obtained in the circumstances

Question 14

Who determines the question of admissibility?

Answer 14

The judge

Question 15

If an accused admits to killing the victim with a gun, stating that they shot the victim and they hid the gun in their car, and the confession is ruled inadmissible…

What can the prosecution adduce as evidence?

Answer 15

They cannot state that the accused confessed to killing or shooting the victim.

But the prosecution can state in evidence that a gun was found in the course of the investigation.

They cannot state that the accused told the police officer about the gun being in his car.

Question 16

An accused confesses to committing the crime and, while confessing, speaks in a way that shows they have a certain speech impediment. The confession is ruled inadmissible, what can the prosecution use in evidence?

Answer 16

They cannot use the confession, but they can provide evidence that the accused has a certain speech impediment.

But the prosecution must only adduce such evidence as is necessary.

Question 17

Other than s76, how can the defence seek to exclude prosecution evidence?

Answer 17

Under s78 PACE. This is the common law exclusionary discretion for ALL prosecution evidence (not just confessions).

Question 18

When is the court likely to exclude evidence under s.78 PACE.

Answer 18

• significant or substantial breaches of PACE or the Codes of Practice
• where there has been bad faith/manifest unfairness independent of any breach

Question 19

Josh confesses in an interview to killing Kirsty. The confession is later ruled inadmissible because it was obtained by oppression. A week later, Josh is interviewed again and there is no oppression in this interview. He confesses again to killing Kirsty. Can this confession be used as evidence?

Answer 19

No. A confession obtained in a subsequent interview may also be inadmissible even though the subsequent interview is conducted properly.

The first interview would have to be proved to have been carried out properly for any of the confessions to be ruled admissible.