Criminal Practice WS4 (Confession evidence)

Question 1

What is a confession?

Answer 1

A confession is ‘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 (PACE 1984, s82(1)).

Anything said by a defendant that constitutes an admission of any element of the offence, with which they are subsequently charged or that is in any way detrimental to their case, will satisfy the definition of confession.

Question 2

Is a confession hearsay and therefore inadmissible?

Answer 2

Yes, although a confession is made out of court and is hearsay it IS admissible.

This is because s76 PACE 1984 provides a separate framework to allow confessions to be adduced as evidence.

Question 3

What confessions are not hearsay?

Answer 3

Confessions made before the trial would ordinarily satisfy the definition of hearsay evidence. It is a statement made outside of the court, which is repeated in court to prove the truth of the matter stated.

HOWEVER
- Despite being hearsay, a confession will be admissible by virtue of s114(1)(a) of CJA 2003
- This provides the hearsay evidence will be admissible if it is made admissible by virtue of any statutory provision
- Further, s76(1) PACE 1984 provides that confessions are admissible.

Question 4

What is meant by ‘wholly or partially adverse’ to the maker? Are they admissible?

Answer 4

Wholly adverse
A statement constituting a confession admits the suspects guilt in respect of all elements of the offence

Partly adverse - e.g. a mixed statement where the elements of the statement, which seem to both exculpate and inculpate the maker e.g. I hit them, but only because I felt that they were going to hit me’ or ‘I did have sex with her, but only because she consented’
In essence, admitting to the act but makes a statement favourable to defence.

Yes admissible under s76 PACE 1984.

Question 5

Is a confession made by a defendant admissible in evidence against a co-defendant?

Answer 5

Any evidence given by a co-defendant at trial which implicates a defendant (including a confession made by the co-defendant) will be admissible in evidence against the defendant.

If the co-defendant has pleaded guilty at an earlier hearing and is giving evidence for the prosecution at the trial of the defendant, any evidence given implicating the defendant in the commission of the offence will be admissible in evidence agains the defendant.

E.g. Trish and Matt charged with theft. Trish is pleading guilty and Matt not guilty - Trish gives a statement to CPS that she and Matt committed the theft together.
- As Trish is no longer being tried with Matt (as she pleaded guilty) she will be able to give evidence as a prosecution witness at Matt’s trial
- If when giving evidence, Trish states that she at Matt committed the theft together, this confession will be admissible in evidence against Matt.

Question 6

Does a confession have to be made to the police?

Answer 6

No can be made to a friend as well.

Question 7

Does the confession have to be made in words?

Answer 7

No. Can be made in words (oral or written) or otherwise e.g. conduct - nodding head, thumbs up, sign language.

Question 8

How can the admissibility of confessions be challenged under s76?

Answer 8

The admissibility of the confession may be challenged and the defendant who is alleged to have made the confession can argue at trial that:

Under s76(2) PACE 1984 on the basis that
1) The confession was not made at all
Or the person who claims to have heard the confession was mistaken or lying
2) The confession was made but, the person who claims that the confession was made was either mistaken as to what they heard or has fabricated evidence of the confession.

If the defendant accepts that they made a confession, they can challenge its admissibility in that it was done by:
(a) i.e. oppression or
(b) in consequence of anything said or done which was likely to render the confession unreliable (s76(2)(b) (Breach of Code C)

This means that if a defendant argues that a confession was obtained in the manner or circumstances detailed under para (a) or (b), the court must not allow that confession to be used as evidence by the prosecution, unless the prosecution prove beyond a reasonable doubt that the confession was not so obtained.

Even if the court thinks that the confession is true, the court must still rule that the prosecution cannot use the confession in evidence unless the prosecution can prove that the confession was not obtained by oppression or in circumstances which render it unreliable.

E.g. Jeff is charged with murder, when interviewed at the police station, he confessed to having committed the murder. At his trial, Jeff argues that the confession was obtained by oppression and should be ruled inadmissible by the trial judge. The CPS must prove beyond a reasonable doubt that the confession was not obtained by oppression, even if the judge believes the confession to be true. If the prosecution fails to do this, the judge must NOT allow the evidence of the confession to be placed before the jury.

Question 9

How can the admissibility be challenged under s78 PACE 1984?

Answer 9

Under s78 PACE 1984 on the basis that the confession would have an adverse effect on the fairness of the proceedings that the court ought to not admit it.

The defendant may seek to rely on s78 where either:
1) They accept that they made the confession, but claim it was untrue
2) They deny making the confession at all

Question 10

What is meant by ‘oppression’

Answer 10

Under s76(8) oppression includes torture, inhuman or degrading treatment and the use of threat or violence.

R v Fulling - oppression consisted of the exercise of authority or power in a burdensome, harsh or wrongful manner, unjust or cruel treatment or subjects, inferiors, imposition of unjust burdens
R v Paris - in an audibly recorded interview at the police station, the defendant was bullied and hectored in making a confession, doesn’t have to be physical violence can be hostile and intimidating approach adopted by interviewing officers

• This is a high threshold to satisfy.

Question 11

What is meant by ‘unreliability’ to anything said or done which was likely to render the confession unreliable (s76)(b)?

Answer 11

More common basis upon which the defence will challenge the admissibility. For the court to exclude a confession under s76(2)(b) something must be said or done (usually by the police) which in the circumstances existed at the time, which might have caused the defendant to make a confession for reasons other than the fact that they had actually committed the offence and wanted to admit guilt.

Breach of Code C. This does not require deliberate misconduct on the part of the police. Things said or done, will only usually be inadmissible if there has been a breach.

Section of Pace Code C:

Part 6 - Right to Legal Advice
- Breach to the right to legal advice, will only make a confession inadmissible if there is a causal link between the breach and unreliability of the confession (court will consider had the defendant been allowed access to legal advice, they would not have made a confession)
- Experienced criminals who are aware of their rights will find this hard to rely on

Part 8 - Conditions of Detention
- denying meals and refreshments

Part 9 - Care and Treatment of Detained Persons
- Medical needs

Part 11 - Interviews in Police Station
- Periods of Rest not given
- Fitness for Interview (not in a fit state to answer questions properly e.g. drugs, or drunk)
- Breaks for Meals haven’t been given so defendant thinks if they admit they will eat soon
- Police tell suspect that they will only be granted police bail if they make a confession
- Inducing the suspect to confess, e.g. that they will receive a lesser sentence, suggesting that they will able to leave the police station much more quickly if they admit their guilt
- Threatening the suspect - that they will keep the suspect at the police station until they make the confession - suspect thinks that they have no option than to confess

Misrepresenting the prosecution
- telling suspect that the prosecution case is much stronger than it actually is
- No point denying guilt

Annex G - Fitness to be interviewed
Annex H - Detained Person Observation List

Question 12

What is the burden of proof under s76 PACE?

Answer 12

If the defendant argues that the confession should not be admissible through Oppression or a breach of Code C, it is for the prosecution to prove beyond reasonable doubt that the confession was not so obtained.

Question 13

Give an example where right to legal advice unreliability ground under s76(2) was successful and unsuccessful?

Answer 13

Successful:
R v Trussler - defendant was a drug addict who was kept in custody for 18 hours. He was interviewed several times without being given any rest and was denied access to legal advice. His confession was excluded under s76(2).

Unsuccessful:
R v Alladice - defendant was denie access to legal advice and confessed to a robbery. When giving evidence at trial, defendant stated that he knew his rights and he understood the police caution.
- Defendant’s application to exclude this confession was rejected by the trial judge. Although denying access to legal advice was a serious breach of Code C, there was nothing to suggest that this might have rendered any confession he made unreliable, because he was fully aware of what his rights were.

Question 14

Can a defendant rely on a confession made by another defendant?

Answer 14

Section 76A(1) allows a defendant to adduce evidence that a co-defendant has made a confession where both defendants plead not guilty and are tried jointly.

Under 76A(2), if the co-defendant who made the confession represents to the court that his confession was obtained as a result of oppression, or in circumstances rendering it unreliable, the court must exclude the evidence of the confession (even if the court believes that the confession to be true).

The court need only be satisfied on the balance of probabilities that the confession was not obtained either by oppression or in circumstances rendering it unreliable in order for the confession to be admissible when a co-defendant wants to rely on it as opposed to the prosecution.

Example:
Bilal and Patrick are jointly charged with common assault. Both are pleading not guilty.
When Patrick was interviewed by the police, he confessed to having committed the crime.

• Under s 76A(1), Bilal is entitled to raise Patrick’s confession in evidence at trial to show
  that it was Patrick rather than he who committed the assault. However, Patrick argues at trial that the confession he made when interviewed was obtained only as a result of threats made by the police to keep him in custody indefinitely until he confessed, and so is unreliable. If Bilal attempts to adduce evidence of Patrick’s confession and Patrick
  challenges the admissibility of this, the court must exclude the evidence of Patrick’s confession under s 76A(2) (even if the court believes the confession to be true) unless the court is satisfied by Bilal on the balance of probabilities that the confession was not
  obtained in circumstances making it unreliable.

Question 15

What is voir dire?

Answer 15

Once admissibility is challenged, a voir dire will then take place to determine whether the confession will be introduced to the arbiter of the fact of evidence.

It is a hearing which takes place before the magistrates or judge (and in the latter, in the absence of the jury) to determine whether a piece of evidence, usually a confession is to be admitted. The prosecution and defence may call witnesses, who are subject to cross-examination and the judge will decide whether the evidence will be admitted.

Question 16

Under s78, what is meant by ‘the defendant accepts making the confession, but claims it was untrue’?

Answer 16

1) If the defendant alleges that they confessed only in light of breach of Code C:
- The court is unlikely to exercise its discretion under 78 unless the breach is ‘significant and substantial’ Examples being:
- A failure to caution the suspect
- Denying the suspect legal advice (this will almost always result in the court exercising its discretion to refuse the confession)

2) A defendant is entitled to argue that a confession is inadmissible even if there has not been a breach of Code C, the court will commonly exercise its discretion where
a) the physical condition of the defendant renders the confession unreliable. E.g. if the defendant was tired, emotional, suffering from the effects of illness, medication (about which he had not told the police) when he made the confession).
b) the defendant had an ulterior motive for making a confession
- E.g. needing to get out of the police station as soon as possible for reasons unconnected to the police investigation, or wanting to protect another person.

Question 17

Under s78, what is meant by ‘the defendant denies making the confession’ and how the defendant can successfully challenge this admissibility?

Answer 17

If the police allege the defendant confessed outside of an interview, but the defendant denies this.

A defendant may successfully challenge the admissibility if the confession was obtained outside of an interview if:
- The police failed to make an accurate record of the defendant’s comments (as required by Code C, para 11.4)
- The police did not give the defendant an opportunity to view, sign and approve the record of his comments (as required by Code C, para 11.11)
- The police failed to put his admission to him at the start of his subsequent interview at the police station, as the whole point of putting the confession to the defendant at the start of the audibly recorded interview is to ensure that the defendant has the opportunity to confirm or deny ‘on the record’ what they are alleged to have said. (as required by Code C, para 11.4).

Example:
R v Canale - police alleged that that the defendant had made certain admissions to them. The defendant denied making these admissions. The interviewing officer to whom these admissions had allegedly been made failed to make a contemporaneous note of the interviews as required by code C, and the defendant was therefore denied the opportunity to comment on the accuracy of the record of these interviews. The evidence was excluded by the court under s 78 because its admission would have had such an adverse effect on the fairness of the proceedings.

Question 18

What are significant statements? s82(1).

Answer 18

Term usually used by the police to describe something said by a suspect in the presence and hearing of a police officer or other member of police staff outside a formal police interview that appears to be capable of being used in evidence against the suspect in particular a direct admission of guilt (Code C of PACE).

Usually this will be in any one of the following:
- Just before or at the time of arrest
- On the way to the police station following arrest
- Whilst at the police station, e.g. when being booked in to custody or at any time before or after a formal interview.

Such a statement therefore falls within the statutory definition of a confession under s82(1) of PACE ‘something that is wholly or partly adverse to the person who made it’

Rules of admissibility of confessions apply to significant statements.

Para 11.4 of Code C - requires police at the beginning of a formal interview, after cautioning the suspect, to put to them any significant statements and to ask whether they confirm or deny that earlier statement and if they want to add anything further.

Example:
Halim is approached by a police officer following a disturbance between two groups of youths where it is alleged that a youth from the other group has been assaulted.
Halim is arrested on suspicion of this assault. The officer claims that just before his arrest, Halim said ‘Yeah, I punched him but only cos he was about to attack me.’ Halim only learns of
this after he has been charged with the offence, when the officer’s witness statement is disclosed as part of IDPC. Halim denies ever having made such a statement.

At trial, Halim is likely to challenge the admissibility of this statement under s 78 of PACE 1984, relying on the failure of the police officer to put the significant statement to him at the start of the interview (para 11.3).

Question 19

What is the procedure for challenging the admissibility of confession evidence?

Answer 19

Crown Court
- in the crown court admissibility of disputed confession evidence will be determined by the trial judge in the absence of the jury at voir dire (a trial within a trial)
- if confession was made by the defendant in an interview at the police station, the interviewing officer will give evidence as to how the confession was obtained and the defendant will then give their version of events.
- Audio recording of the interview likely to be paid
- If confession was made ‘outside’ the police station, officer to whom the confession was allegedly made will give evidence, as will the defendant.
- Prosecuting and defence counsel will then make submissions to the judge on whether or not the confession should be excluded in the light of evidence given
- The judge will then make their ruling
- If the judge rules the confession to be inadmissible, the jury will hear nothing about the confession. If the judge rules the confession to be admissible, the interviewing officer will then give evidence of the confession when giving evidence to the jury. The defendant will still be able to attack the credibility of the confession (either when giving evidence, or when the police officer is being questioned) in an attempt to persuade the jury to attach little or no weight to it.

Magistrates court
- in the magistrates court, ruling as to admissibility of the disputed confession will normally be sought when the interviewing officer gives evidence.
- If the defendant seeks to exclude evidence of the confession under s76(2), the magistrates must hold a voir dire.
- If the defendant raises submissions under 76(2) and s78 both arguments should be dealt with at the same voir dire.
- If the defendant seeks to rely on s78, there is no obligation to hold a voir dire. In such cases, a challenge to the admissibility of the confession may be left either to the close of the prosecution case (if the defendant’s solicitor wishes to make a submission of no case to answer) or to the end of trial when defendant’s solicitor makes a closing speech.

Question 20

How is evidence obtained as a result of an inadmissable confession dealt with?

Answer 20

The fact that the court excludes evidence of a confession made by a defendant will not affect the admissibility in evidence of any facts discovered as a result of the confession s76(4) PACE.

Although the CPS will not be able to tell the court that such facts were discovered as a result of the confession made by the defendant.

E.g.
Max is charged with murder. As a result of a confession made by him, the police are able to recover the murder weapon with Max’s fingerprints on it. The trial judge rules
that the confession is inadmissible under s 76(2)(b). The CPS will still be able to adduce
evidence as to the finding of the weapon with Max’s fingerprints on it even though it will
not be able to raise in evidence that this item was discovered as a result of a confession
made by Max. This evidence will still be an important piece of circumstantial evidence
against Max.