Confessions and unlawfully/unfairly obtained evidence Flashcards
What is the general rule as to admissibilty of confession evidence
admissible insofar as it is relevant to any issue in the proceedings and not excluded under s76/8
What is the definition of confession
any statement wholly or partly adverse to the person making it, whether made to a person in authority or not and whether made in words or otherwise
How is a retracted guilty plea treated
consider impact on proceedings and exclude if approp - retracted plea could be relied upon by co-defendant though
must a confession be in words?
no - can be nod/gesture
conduct interpreted as guilty but not intended to is not a confession - e.g driving away from scene of incident
What might appear inculpatory in context of a mixed statement but may not be?
admission of fact which is not in dispute and remainder entirely self-serving it is not confessionWh
What are the 2 limbs to exclude confessions under in s76(2)
(a) oppression of person making it
(b) in consequence of anything said or done, likely in circs art the time, to have caused confession
who bears burden of proving admissibility of confession under s76
prosecution to porve NOT obtained under oppression/consequence of things said or done but D must raise it in application
How is oppression defined?
torture - inhuman or degrading treatment, use or threat of violence
Rv Fulling - common law - imposing undue burden /cruel treatment
Where might some impropriety be acceptable
where it has not impacted reliability of the confession
career criminals can expect more severe interrogation
What must be taken into account when considering level of oppression
character and attributes of the accused - at that time and previous
How is the statutory test of rendering confession unreliable applied
not whether specific confession given was unreliable but whether any confession given would have been - ignore evidence that the actual confession was reliable
must the thing said or done be external to the person making the confession?
yes - cannot be self-created thing said or done - but self-induced incapacity still key to consider in attributes of D
What is the consequence of a breach of Code C PACE
not automatically a ‘thing said or done’ but may provide evidence supporting s76(2)(b) application may be an ommission rather than an act
What is the rule for exlcusion of evidence under s78
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 its’ admisison would have such an adverse effect on fairness of proceeding that the court ought not to admit it + common law rule (probative value outweighed by prejudice)
what is the burden of proof defence must meet when making s78 application
balance of probabilties
how can PACE codes be used to support s78 application?
breach of relevant code does not lead to automatic exclusion of evidence - will consider its’ prejudicial effect - causal link needed
How might a breach of the right to legal advice be construed?
consider whether withheld wrongly or just circumstances had not given rise to it yet
was there fair reason for restriction of access and whether the trial was fair
where right to advice waived it must have been informed and voluntary and unequivocal
What things within interview codes are likely to trigger exclusion
failure to provide an appropriate adult
language barrier not catered for
correct cautioning
failure to recognise when quesitoning has become an interview of a suspect rather than witness and acting accordingly
breaches which are unlikely to trigger exclusion
failure of police officer to show note of convo which a witness asked to keep off record
minor/inconsequential breacheshat i
what is the impact of bad faith on behalf of the police when they have acted in breach
makes breach more severe - but good faith does not nec make it less severe
What process determines admissibility of confession evidence
voir dire - trial within trial - jury normally dismissed - production of confession in this context does not adduce it to court and should be produced again
if D holds the only evidence they must present it even if they have not previously given evidence
what is the process for Voir Dire in s76 apps
D notify prosecutor that objection will be raised
prosecutor refrains from mentioning the statement before jury (if CC)
at approp time judge conducts voir due to decide
what constitutes a respresentation for purposes of s76(2)
statement by responsible counsel on basis of evidence in possession at the time
when must s78 apps be heard by mags?
as a pre-lim issue
can hear s76/8 combined within trial
can confession evidence excluded by s76 be admitted by any other route
no s128 CJA precludes this - inc the hearsay exception of interests of justice
Can confession evidence be used to prove things other than truth of the confession when excluded under s76?
yes - facts discovered as a result of the confcession OR evidence of the way an accused speaks, writes, expresses themselves - can give as much evidence as is necessary to show this
where does the confession end and evidence arising from it start?
e.g a filmed reenactment amonunted to the confession itself, evidence should be sufficiently ‘separate’
what common law principle applies to facts arising from evidence excluded by s78
admissible in principle
where evidence has been obtined illegally what may court do?
stay proceedings
where not stayed - evidence is admissible as matter of law even if wrongfully obtained e.g theft, unlawful search, agents provocateurs, eavesdropping, invasion of privacy
what is admissibility of confession evidence found to have been obtianed by means included in s76
must be excluded except insofar as for prosecution to prove it was not so
for what evidence can s78 applications be made
any evidence on which the prosecution seeks to rely
if probative value < prejudical effect
effectively if it has been obtained unfairly, illegally, improperly..
what can D take into account when making submissions under s78
probative < prejudicial
all circs inc those in which evidence obtained - whoever by - must have impact on fairness
How else might evidence be excluded (CJA s101 and 126)
bad character and hearsay
what are the two heads of common law which operate to exclude confession evidence
unreliable confessions where probative value < prejudicial effect
confession evidence where it might operate unfairly against accused
rarely used - and most commonly where something has been admitted where it shouldnt have been and judge needs to remove from contemplation
where is exclusion for unfairness at common law most used
breach of judge rules and where confession extracted following period of unlawful detention
is serious breach automatically excluding evidence?
no - must consider impact - there has been cases where serious breach eg failure to caution did not have effect as officer acting in good faith
when must any issue of unfairness be raise?
by any party against whom evidence could operate before prosecution have adduced it
judge can use discretion to exclude later but better jury have not heard it
what will parties be directed to prepare for voir dire
statements , skeleton submissions etc.hat
might a voir dire be used for in CC
competence of witness
admissibility of confession
admissibility of recroding
admissibility of statement contained in doc produced by compter
admissiblity of GP against accused who has changed plea to NG
can a voir dire be held in mags?
no as tribunal of fact and law are joined?
when must s76 applicaiton be dealt with in mags?
ideally as pre-lim issue but if arises in summary trial voir dire needed
when can s78 application be dealt with in mags?
can be heard when it arises or judgment deferred until end of hearing
if decided to exclude it should consider whether new bench needed
where confession is main evidence against the accused - so there might be no case to answer otherwise when should it be heard
pre-lim issue
