Confessions - s78 and s76

Question 1

s78 test

Answer 1

Whether 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.

Question 2

Eight codes of PACE

Answer 2

Code A: stop and search
Code B: Entry, Search, Seizure
Code C: Detention, Treatment and Questioning of non-terrorist suspects
Code D: identification
Code E: Audio recording of interviews
Code F: visual recording of interviews with sound
Code G: arrest
Code H: detention, treatment and questioning of terrorism suspects

Question 3

Code C

Answer 3

examples:

3.1: detained suspects must be informed of:
(i) their right to consult privately with a solicitor and that free independent legal advice is available
(ii) right to have someone informed of their arrest
(iii) right to consult with the Codes of practice

10.1: person of who where are grounds to suspect of an offence must be cautioned before any questions about the offence are put to them, if either the suspect’s answers or silence may be used against them

10.3 caution on arrest

10.5 caution format (you do not have to say anything…)

11.1A: defines interview - questioning of a suspect regarding involvement in a criminal offence

11.1 interview must take place at police station unless delay would lead to harm to evidence, harm to people, loss or damage to property, alerting other suspects, hinder recovery of property

11.5 appropriate adult

Question 4

When can you make a section 78 application?

Answer 4

• Before the trial
• At the commencement of the trial
• Just prior to the prosecution seeking to admit the evidence which the defence wish to be excluded

Question 4

Voire Dire

Answer 4

In the crown court.

Mini-trial, no jury presence.

Regarding disputes as to fact on say an application to exclude evidence.

Question 5

Excluding confessions - s76 and s78

Answer 5

Normal to exclude applications under 76 and in the alternative 78.

78 is a broader sweep and may cover confessions where it would be a stretch to say it makes the confession ‘unreliable’.

Question 6

What is a confession?

Answer 6

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.

Includes:
- unequivocal confessions of guilt
- mixed statements (where partly adverse to the maker)
- nods, signs, gestures

Question 7

Challenging a confession under section 76

Answer 7

(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

If the defence raises one of these it is up to the prosecution to prove to the court beyond reasonable doubt that the confession was not obtained as aforesaid.

Question 8

Exclusion for oppression

Answer 8

Oppression: torture, inhuman or degrading treatment and the use or threat of violence.

Should take into account the character and attributes of the accused.

Once raised, prosecution must prove beyond reasonable doubt this did not occur. Doing this does not stop defence from raising the issues at trial.

Question 9

Exclusion for unreliability

Answer 9

1) identify thing said or done which requires the trial judge to take into account everything said or done by the police

2) Ask whether what was said and done was likely in the circumstances to render unreliable a confession made in consequence. Test is objective.

3) Ask whether prosecution has proved beyond reasonable doubt this was not so.

Question 10

Things said or done

Answer 10

Can be positive acts such as a promise, inducement or trick.
- promise to release someone promptly from custody if ‘tell all’
- promise of bail form the police station conditional on a full and frank confession
- threat to arrest a suspect’s partner or other family members if suspect does not cooperate

Omissions or failures to act
- interviewing vulnerable suspect without an AA

Question 11

Unreliable confession made in consequence

Answer 11

Court does not consider reliability of the confession, but a hypothetical question - is there a likelihood that any confession would be unreliable in the circumstances prevailing at the time.

• deprivation of sleep
• failure of sleep
• denial of access to legal advice

Question 12

Evidence discovered as a result of an excluded confession

Answer 12

Fact that a confession is wholly or partly excluded will not affect admissibility of evidence discovered as a result of the confession.

e.g. body founds as a result of the confession - could still use the body in the case (but couldn’t say it was found as a result of the defendant)

Question 13

Four key aspects to an application to exclude a confession

Answer 13

• Advance notification
• Timing
• Voir dire
• Submissions

Question 14

Application: MC

Answer 14

Advanced notification: any defence skeleton argument in support at least 10 business days before trial and the prosecution response 5 business days after that

Timing: any application under s76 should be dealt with as a preliminary issue

Voir Dire: Application under 76 or 76 and 78 and evidence is disputes, MC should hear evidence and decide application as a preliminary issue. If only under 78, MC have a discretion to hear all the evidence in the usual way and decide upon its admissibility later

Question 15

Applications: CC

Answer 15

Advance notification: PTPH, judge is likely to order when defence is to serve a skeleton argument in support of 76/78 arguments when the prosecution serve a response and when the arguments will be heard

Timing: application to exclude the confession can be made a pre-trial hearing or dealt with right before opening case to jury

Voir dire: required where application is made under s.76