Confessions and unlawfully/unfairly obtained evidence

Question 1

What is the general rule as to admissibilty of confession evidence

Answer 1

admissible insofar as it is relevant to any issue in the proceedings and not excluded under s76/8

Question 2

What is the definition of confession

Answer 2

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

Question 3

How is a retracted guilty plea treated

Answer 3

consider impact on proceedings and exclude if approp - retracted plea could be relied upon by co-defendant though

Question 4

must a confession be in words?

Answer 4

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

Question 5

What might appear inculpatory in context of a mixed statement but may not be?

Answer 5

admission of fact which is not in dispute and remainder entirely self-serving it is not confessionWh

Question 6

What are the 2 limbs to exclude confessions under in s76(2)

Answer 6

(a) oppression of person making it
(b) in consequence of anything said or done, likely in circs art the time, to have caused confession

Question 7

who bears burden of proving admissibility of confession under s76

Answer 7

prosecution to porve NOT obtained under oppression/consequence of things said or done but D must raise it in application

Question 8

How is oppression defined?

Answer 8

torture - inhuman or degrading treatment, use or threat of violence
Rv Fulling - common law - imposing undue burden /cruel treatment

Question 9

Where might some impropriety be acceptable

Answer 9

where it has not impacted reliability of the confession
career criminals can expect more severe interrogation

Question 10

What must be taken into account when considering level of oppression

Answer 10

character and attributes of the accused - at that time and previous

Question 11

How is the statutory test of rendering confession unreliable applied

Answer 11

not whether specific confession given was unreliable but whether any confession given would have been - ignore evidence that the actual confession was reliable

Question 12

must the thing said or done be external to the person making the confession?

Answer 12

yes - cannot be self-created thing said or done - but self-induced incapacity still key to consider in attributes of D

Question 13

What is the consequence of a breach of Code C PACE

Answer 13

not automatically a ‘thing said or done’ but may provide evidence supporting s76(2)(b) application may be an ommission rather than an act

Question 14

What is the rule for exlcusion of evidence under s78

Answer 14

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)

Question 15

what is the burden of proof defence must meet when making s78 application

Answer 15

balance of probabilties

Question 16

how can PACE codes be used to support s78 application?

Answer 16

breach of relevant code does not lead to automatic exclusion of evidence - will consider its’ prejudicial effect - causal link needed

Question 17

How might a breach of the right to legal advice be construed?

Answer 17

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

Question 18

What things within interview codes are likely to trigger exclusion

Answer 18

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

Question 19

breaches which are unlikely to trigger exclusion

Answer 19

failure of police officer to show note of convo which a witness asked to keep off record
minor/inconsequential breacheshat i

Question 20

what is the impact of bad faith on behalf of the police when they have acted in breach

Answer 20

makes breach more severe - but good faith does not nec make it less severe

Question 21

What process determines admissibility of confession evidence

Answer 21

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

Question 22

what is the process for Voir Dire in s76 apps

Answer 22

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

Question 23

what constitutes a respresentation for purposes of s76(2)

Answer 23

statement by responsible counsel on basis of evidence in possession at the time

Question 24

when must s78 apps be heard by mags?

Answer 24

as a pre-lim issue
can hear s76/8 combined within trial

Question 25

can confession evidence excluded by s76 be admitted by any other route

Answer 25

no s128 CJA precludes this - inc the hearsay exception of interests of justice

Question 26

Can confession evidence be used to prove things other than truth of the confession when excluded under s76?

Answer 26

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

Question 27

where does the confession end and evidence arising from it start?

Answer 27

e.g a filmed reenactment amonunted to the confession itself, evidence should be sufficiently ‘separate’

Question 28

what common law principle applies to facts arising from evidence excluded by s78

Answer 28

admissible in principle

Question 29

where evidence has been obtined illegally what may court do?

Answer 29

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

Question 30

what is admissibility of confession evidence found to have been obtianed by means included in s76

Answer 30

must be excluded except insofar as for prosecution to prove it was not so

Question 31

for what evidence can s78 applications be made

Answer 31

any evidence on which the prosecution seeks to rely
if probative value < prejudical effect
effectively if it has been obtained unfairly, illegally, improperly..

Question 32

what can D take into account when making submissions under s78

Answer 32

probative < prejudicial
all circs inc those in which evidence obtained - whoever by - must have impact on fairness

Question 33

How else might evidence be excluded (CJA s101 and 126)

Answer 33

bad character and hearsay

Question 34

what are the two heads of common law which operate to exclude confession evidence

Answer 34

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

Question 35

where is exclusion for unfairness at common law most used

Answer 35

breach of judge rules and where confession extracted following period of unlawful detention

Question 36

is serious breach automatically excluding evidence?

Answer 36

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

Question 37

when must any issue of unfairness be raise?

Answer 37

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

Question 38

what will parties be directed to prepare for voir dire

Answer 38

statements , skeleton submissions etc.hat

Question 39

might a voir dire be used for in CC

Answer 39

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

Question 40

can a voir dire be held in mags?

Answer 40

no as tribunal of fact and law are joined?

Question 41

when must s76 applicaiton be dealt with in mags?

Answer 41

ideally as pre-lim issue but if arises in summary trial voir dire needed

Question 42

when can s78 application be dealt with in mags?

Answer 42

can be heard when it arises or judgment deferred until end of hearing
if decided to exclude it should consider whether new bench needed

Question 43

where confession is main evidence against the accused - so there might be no case to answer otherwise when should it be heard

Answer 43

pre-lim issue