Confessions and unlawfully or unfairly obtained evidence Flashcards
Definition of confession:
s. 82 PACE:
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
Excluding a confession:
s. 76(2) PACE:
(a) oppression
(b) 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.
Who tries to exclude a confession?
Must be raised by the defence but s. 76(3) provides court can require P to prove it was not (a) or (b)
Prosecution must prove beyond all reasonable doubt that confession was not obtained via oppression
Oppression:
s. 76(8) widely defines oppression as:
‘oppression included torture, inhuman or degrading treatment and the use or threat of violence’
R v Fulling:
Oppression should be given its ordinary meaning
Unreliability:
R v Barry:
- First identify the thing said or done which requires the TJ to take into account everything said and done by police
- Secondly to ask whether what was said and done was likely in the circumstances to render unreliable a confession made in consequence. Objective test taking into account all the circumstances
- Thirdly, to ask whether the P has proved beyond all reasonable doubt that the confession was not obtained in consequence of the thing said and done, which is a question of fact to be approached in a common-sense way
R v Gill - court must decide whether there is a likelihood that ANY confession would be unreliable in the circumstances prevailing at the time
Meaning of unreliable and examples:
R v Campton- Mean it cannot be relied upon as being the truth
including:
- Deprivation of sleep
- Failure to caution
- Denial of access to legal advice
Discretionary Exclusion:
s. 78 PACE:
‘ 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 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 the proceedings that the court ought not to admit it ‘
Test is not about the seriousness of breach per se but the extent of any unfairness caused by it
Evidence obtained by an inadmissible confession:
Is admissable
Important words under s.78:
PROPOSES to rely and PROSECUTION so cannot be made by P to exclude D evidence and must be made before P adduces it
If already been adduced then there is a common law power to exclude evidence
