Confessions and unlawfully obtained evidence

Question 1

What is a confession?

Answer 1

any statement wholly/ partly adverse t the person who made it

• can be made to a person in authority or informally to a a friend/ colleague
• Can be made using words or head nod, thumbs up, re-enactment of crime for PO

Question 2

What’s a Guilty Plea?

Answer 2

A confession

• if plea retracted, may be excluded from evi under s.78 PACE
• May be relied upon as a confession by co-A (s.78 doesn’t apply here)

Question 3

Can admission made by A in other proceedings count as a confession?

Answer 3

Yes, but subject to the exclusion under s 78

Question 4

What’s a mixed statement (part confession, part exculpation)?

Answer 4

Confession

Not all of it

e.g. admission of presence at scene of crime; but blame co-A for killing (second part not part of the confession)

Question 5

What’s not a confession?

Answer 5

(1) Plea in mitigation by counsel / convicted person following NG plea
(2) Conduct not intended to convey guilt (but which might be interpreted as doing so), e.g. driving away from scene of accident

NB the person giving evidence of the confession does not have to be the person to whom confession was made

Question 6

What’s a plea in mitigation?

Answer 6

Submissions made by the defendant or their representative as part of the sentencing process, presenting the information or evidence which they rely on to mitigate their role or involvement in the offence or their personal circumstances so that the judge can take this into account in sentencing.

Question 7

What’s the general rule for admissibility and exclusion of confessions under s. 76 PACE?

Answer 7

1) Confessions admissible if:
- relevant to any matter in issue
- not excluded by court

2) MUST be excluded if:
- obtained by oppression, or
- anything was said/ done at the time likely to render it unreliable

Question 8

Who bears the burden and to what standard when seeking to exclude confessions under s.76 PACE? What’ s the procedure?

Answer 8

Bears the burden of proof
- must prove no oppression
- must prove not unreliable BRD

where:

1) D applies to exclude confession under s. 76, or
2) court requires proof of its own motion

NB: a confession may also be excluded in part

Question 9

What is oppression?

Answer 9

• Torture, inhumane, degrading treatment
• use/ threat of violence
• general exercise of authority in a burdensome/ harsh/wrongful manner

Question 10

When can a confession be excluded on the basis of oppression?

Answer 10

Think of whether the conduct is of deliberate and serious nature

Normally involves improper conduct by interrogator

Not all impropriety will lead to oppression (only when a PACE code is breached)

Question 11

Does the character/ attributes of A affect the nature of the oppression?

Answer 11

Yes

• The nature of the oppression varies according to character/ attributes of A

E.g. ‘experienced criminal’ can be interrogated more vigorously than A of previous good character / vulnerable

Question 12

What’s the test of exclusion for unreliability under s 76(2)(b) PACE? (things said and done)

Answer 12

Whether any confession which A might make was likely to be rendered unreliable in consequence of what was said or done, in the circumstances existing at the time of the confession

Think: were the circumstance around the confession likely to induce the confession as unreliable?

Question 13

When applying s.76(2)(b) PACE, what satisfy the ‘what was said or done’ element to pass the test?

Answer 13

There must be causation linking ‘anything said and done’ and surrounding circs
· E.g. solicitor intervening in interview in attempt to secure confession

Question 14

Confessions cannot be rendered inadmissible by reason only of something said/done by A - is must be……

Answer 14

It must be done/said by another

The confession will only be excluded if there’s causation - involvement or influence from another

Question 15

A breach of PACE Codes doesn’t automatically lead to exclusion of evidence. But a breach can (on its own/ tother with/ other factors) provide evidence that s 76(2)(b) has not been complied with. Can you list the 5 factors?

Answer 15

1) Interview not recorded until following day - may deprive court of reliable record if D argues confession falsely induced

2) Failure to caution and maintain proper interview record/ show it to D

3) Q’ing before allowing access to solicitor & failure to show note to D/ solicitor

4) Improper Q’ing after charge

5) Police insisting on an unsuitable adult

Question 16

What’s the exclusion test under s 78 PACE? (only P evidence)

Answer 16

Court may exclude evidence on which P proposes to rely if, having regard to all the circs, incl. those in which the evidence was obtained, admitting it would have such adverse effect on fairness of the proceedings that court ought not to admit it

• adverse effect of fairness + court ought not to admit it

Question 17

Will CoA interfere w/ discretion under s 78?

Answer 17

CoA won’t interfere w/ discretion under s 78 unless decision perverse

Question 18

Who bears burden of proof to prove that P evidence ought to be excluded?

Answer 18

Burden of proof: A
Standard: ‘balance of probabilities’

Question 19

What are the relevant considerations for a breach of PACE codes lead to an exclusion of confession evidence under s 78?

Answer 19

Relevant considerations:

1) Nature & extent of breach
refusing access to solicitor = major

(2) Breach of right to legal advice
- Relevant that this is a ‘fundamental’ right

• Unless only function of advice to remind D of rights he already knows about
• Unless right waived – must be voluntary, informed & unequivocal

(3) Breach of interview procedures
- ‘Substantial breaches’ may result in exclusion, incl.
- D, a suspect, Q’ed w/o caution in hospital

• Failure to make contemporaneous interview record
• D’s right to appropriate adult breached
• D not informed of why arrested (&, in general terms, level of offence – e.g. confessed ‘theft’ when, unbeknownst to him, was also suspected of robbery & manslaughter)
• Interrogator fails to appreciate Q’ing of D = ‘interview’, leading e.g. to failure to caution, record interview & offer legal advice to D

(5) Bad faith

More likely evidence will be excluded

Question 20

Per s.78, a PACE code wil be breached if?

Answer 20

• The extent of unfairness caused by it = significant and substantial
• not extent/seriousness of breach
• even here the exclusion is not automatic

Question 21

What PACE breaches will not trigger exclusion under s. 78?

Answer 21

Technical breaches (insufficient/ substantial)

• more than technical but admitting causes not fairness

Question 22

What’s the procedure for determining the admissibility of confessions?

Answer 22

Voir Dire

Procure:
1) D counsel notified P that an objection to admissibly is raised

2) P refrains from mentioning statement in opening to jury

3) judge will direct jury to withdraw and conduct a trial on voir dire to decide admissibility
- A may give evidence

Question 23

What’s the effect of s 76 in a voir dire?

Answer 23

Court must immediately conduct a voir dire if admissibility of a confession is objected to before the close of the P case

• Applies to both Mags & CC

Mags have to put any objectionable material ‘out of their minds’ before considering D’s guilt

NB: if a confession is excluded under s 76 it cannot be brought in by any hearsay exceptions

Question 24

What’s the effect of s 78 in a voir dire?

Answer 24

• Defence objection should be made before confession given in evidence (‘…on which P proposes to rely…’)

ST: D has NO right to voir dire simply to determine a preliminary issue under s 78

NB court may take into account any confirmation of a confession by the discovery of incontrovertible facts in deciding whether to exercise its s 78 discretion to exclude (as part of ‘all the circumstances’)

Question 25

What’s the rule regarding evidence obtained from a inadmissible confession (s 76(4) PACE)?

Answer 25

Whole/part exclusion of a confession does not affect the admissibility in evidence of:

(a) Facts discovered as a result of confession, or
E.g. police find stolen goods due to inadmissible confession – still allowed to prove discovery of stolen property

(b) where confession relevant as showing that A speaks, writes / expresses himself in certain way, (only) so much of it as necessary to show this
E.g. misspelling / unusual speech impediment, or local accent

NB only applies where confession excluded under s 76; where excluded under s 78, common law rules still allow the same evidence to be adduced

Question 26

What’s the court’s power where P evidence if obtained unlawfully?

Answer 26

court has power to stay proceedings

Question 27

What’s the common law provisions for excluding P’s evidence?

Answer 27

Common law provisions:

• Judge OO CL duty to exclude where evidence where its prejudicial effect outweighs probative value
• Applicable to admissions, confessions & any evidence obtained from A unfairly, illegally / improperly after commission of offence (= more limited than s 78)
• can be used to exclude confessions after admitted if they shouldn’t have been (unlike PACE)

NB: In practice, largely superseded by s 78 (even though expressly preserved by PACE)

Question 28

Where the proceedings were NOT stayed despite the evidence being unlawfully/ improperly/ unfairly - was admitted as a matter of law. P evidence is still subject to some exclusory powers - what are these?

Answer 28

(1) PACE s 78 – general application
(2) PACE s 76 – confessions
(3) Common Law Provisions
(4) CJA 2003, s 101(3) – bad character evidence ‘unfair’
(5) CJA 2003, s 126 – hearsay exclusion

Question 29

What’s the procedure for making or challenging applications to exclude evidence under s 78?

Answer 29

• Must be done before evidence given (i.e. cannot be used to withdraw)
• Should be a hearing on the voir dire if necessary to deal with disputed facts about circs in which evidence obtained

NB: in a voir dire, same exclusionary rules of evidence apply as apply to the trial proper

Question 30

CC trial – matters which may be determined in voir dire include?

Answer 30

(a) competence of a W

(b) admissibility of a confession / other variety of admissible hearsay (e.g. statement made by someone who does not give evidence ‘through fear’)

(c) admissibility of a recording

(d) admissibility of a statement contained in a doc produced by a computer, and

(e) admissibility of a plea of G against an A who subsequently changes to NG

*No general rules in ST as to when Mags should determine Qs of admissibility

Question 31

How can D challenge the admissibility under s 78 in a ST?

Answer 31

In a ST, D = not entitled to a voir dire under s 78

Timing → Mags can deal w/ issue when arises, or leave decision to end of hearing

• best to hear the whole of P case first (incl. the disputed evidence)

After a successful s 78 challenge to admissibility of a confession, Mags should consider, after seeking views of parties, whether substantive hearing should be conducted by a different bench

Question 32

What’s the test of the common law power to exclude evidence?

Answer 32

Test is:
- prejudicial effect of the evidence outweighs the probative value.

It applies to:
- admissions, confessions and any evidence obtained unfairly, illegally or improperly after commission of offence.

• In practice it is very unlikely to be used because of the wider scope of s.78.

Question 33

Is there a statutory rule under s. 78 governing admissibility of evidence discovered as a result of an excluded confession

Answer 33

No

The common law principles in relation to evidence discovered as a result of an excluded confession might allow for the evidence to be adduced

Question 34

What’s the point of the trial where an application to exclude the confession in interview would be taken?

Answer 34

In a voir dire before the close of the prosecution case

S. 76 does require the magistrates to conduct a voir dire to determine admissibility when before the prosecution case is closed the defence submit the confession should be excluded under s.76(2) Liverpool Juvenile Court ex parte R [1988] QB1

Question 35

Is the Police and Criminal Evidence Act the only statute that provides for the exclusion of evidence?

Answer 35

CJA 2003 - exclusion of bad character evidence and admissible hearsay evidence

Question 36

What’s the scope of s.78?

Answer 36

s.78 applications are not limited to the common law power to exclude

s.78 can be used to seek to exclude any evidence upon which the prosecution proposes to rely including the otherwise admissible conviction of a person other than the accused

s.78 can be used to exclude evidence obtained in breach of the European Convention on Human Rights

s.78 applications can be used to exclude evidence obtained by persons other than police officers

The ambit of s.78 is very wide and is not simply based upon the circumstances in which evidence was obtained by police officers or other investigating officers.