Criminal slides part 4 Flashcards
What is a confession?
“confession”, 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.’
The definition of a confession in the Police and Criminal Evidence Act 1984 (PACE), s82(1) is deliberately wide and the following will fall within the definition:
• unequivocal confessions of guilt (ie wholly inculpatory statements such as ‘I did it’).
• mixed statements (those which are partly inculpatory and partly exculpatory, such as ‘I had nothing to do with it but I was glad to see the victim die’). These fall within the definition of a confession because they are partly adverse to the maker.
• depending on the context, a nod, sign or gesture can be sufficient, as a confession does not have to be articulated in words.
What does s76 say about admissions?
A confession can be used in evidence against a defendant as long as it is relevant to any matter in issue.
Unless the confession was obtained:
a) by oppression of the person who made it; or
b) in consequence of 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 prosecution want to use it, they need to prove that it was obtained correctly.
The fact that a confession is wholly or partly excluded in pursuance of this section shall not affect the admissibility in evidence—
(a) of any facts discovered as a result of the confession; or
(b) where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, of so much of the confession as is necessary to show that he does so.
Evidence that a fact to which this subsection applies was discovered as a result of a statement made by an accused person shall not be admissible unless evidence of how it was discovered is given by him or on his behalf. This applies to:
(a) to any fact discovered as a result of a confession which is wholly excluded in pursuance of this section; and
(b) to any fact discovered as a result of a confession which is partly so excluded, if the fact is discovered as a result of the excluded part of the confession.
What are the two main ways under s76 to challenge a confession?
(1) under s.76(2)(a)- ‘oppression’; or
(2) under s.76(2)(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’.
How is S76 used in court?
it only operates where ‘it is represented to the court’ by the defence that s.76(2)(a)or (b) apply. However, even where there is no defence challenge, s.76(3) provides that the court itself can require the prosecution to prove that the confession was not obtained as set out in s.76(2)(a) or(b).
What is the definition of oppression?
‘Oppression’ is widely defined in s.76(8) to include torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture). This wording reflects that contained in European Convention on Human Rights, Article 3.
R v Fulling [1987] QB 426, 85 Cr App R 136- The Court of Appeal held that ‘oppression’ in s.76(2)(a) should be given its ordinary dictionary meaning:
‘The Oxford English Dictionary as its third definition of the word runs as follows: “exercise of authority or power in a burdensome, harsh, or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc., or the imposition of unreasonable or unjust burdens.” One of the quotations given under that paragraph runs as follows: “There is not a word in our language which expresses more detestable wickedness than oppression.” We find it hard to envisage any circumstances in which such oppression would not entail some impropriety on the part of the interrogator.’
What might be oppressive to one person might not be oppressive to another, so it is legitimate to consider the character and attributes of the accused.
What is the exclusion of confessions for oppression?
where it is represented to the court that the confession was or may have been obtained by oppression of the person who made it, then the court shall not allow the confession to be given in evidence against him except insofar as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.
If a confession is disputed under the oppression exclusion and the judge allows it to be admitted, what can the defendant do?
The defendant can seek to discredit it with cross-examination.
It would then be for the jury to decide for themselves whether to rely upon the alleged confession or not.
What is the exclusion of a confession for unreliability?
Section 76(2)(b) provides that:
• where it is represented to the court that
• the confession was or may have been obtained in consequence of 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
• the court shall not allow the confession to be given in evidence against him
• except insofar as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid
How does the court decide if the confession is unreliable?
the correct approach is:
• First, to identify the thing said or done, which requires the trial judge to take into account everything said and done by the police.
• Secondly, to ask whether what was said and done was likely in the circumstances to render unreliable a confession made in consequence. The test is objective taking into account all the circumstances.
• Thirdly, to ask whether the prosecution has proved beyond 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.
How do you identify the thing said or done (for unreliable confessions)?
There are numerous examples of what the thing said or done can be.
These can be positive acts, such as a promise, inducement or trick. Examples are:
• a promise to release someone promptly from police custody only if they ‘tell all’; or
• a promise of bail from the police station conditional on a full and frank confession; or
• a threat to arrest a suspect’s partner or other family members if the suspect does not ‘cooperate’.
The thing said or done can also be an omission or failure to act, such as interviewing a young or mentally vulnerable suspect without an appropriate adult.
The thing said or done must not simply be something from the suspect, but from something external to the person. A suspect who makes an admission because they consider this is likely to get them bail (when the suspect has not been induced into believing this) cannot subsequently rely on s.76(2)(b).
Often when s.76(2)(b) is invoked the defence will be submitting that what was said or donewas itself a breach of PACE Code C.
What happens if a confession is inadmissible because of oppression AND anything said or done?
You can use either or both to challenge the confession.
What does unreliable mean in the context of admitting confessions?
‘The word “unreliable”, in our judgment, means “cannot be relied upon as being the truth”. What the provision of subsection 2(b) is concerned with is the nature and quality of the words spoken or the things done by the police which are likely to, in the circumstances existing at the time, render the confession unreliable in the sense that it is not true. It is quite plain that if those acts and words are of such a quality, whether or not the confession is in fact true, it is inadmissible.’
‘The relevant question is whether, having regard to the purpose for which an appropriate adult is required, the absence on this occasion of the protection which such presence would have provided is likely to have rendered any confession made at that time unreliable.’
What are examples of a confession being unreliable?
- Deprivation of sleep
- Failure to caution
- Denial of access to legal advice
Who is not competent to be a witness?
- the defendant/accused- D is not competent to be a prosecution witness.
- children and persons with a disorder or Age is not the determining factor of whether a child is competent; the only test is whether the child can (1) understand questions, and (2) can give comprehensible answers. The test is the same for those operating with a disorder or disability.
- Spouse/civil partner- A spouse or civil partner of a defendant is competent to give evidence for any party in the case.
- Deaf or speech impaired witness- These witnesses are competent so long as they understand the solemnity of taking the oath or affirmation. They can give evidence using interpreters, handwriting, sign language or any combination of these.
Some witnesses cannot be compelled?
The defendant- The defendant is not competent for the prosecution and so clearly can’t be compelled by the prosecution. The defendant may give evidence on D’s own behalf, but cannot be compelled to do so.
Children and persons with a disorder or disability- If competent, these witnesses are compellable.
Spouses/civil partners- Spouses and civil partners can be compelled to give evidence for their spouse or civil partner (ie for the defence) but only for the prosecution if the offence charged against their partner is (PACE s 80):
a) Assault on, or injury, or threat of injury to that spouse or partner (ie domestic violence)
b) Assault on, or injury, or threat of injury, to a child under 16
c) A sexual offence against someone under the age of 16
d) Attempts, conspiring, aiding and abetting any of the above
Opinion evidence given who ultimately decides the inferences they draw and the conclusions they should come to from the factual evidence provided?
JURY
What is a good example of admissible perception?
good example of an admissible perception of a non-expert is an opinion as to drunkenness. Many people involved in crime or who are witnesses to it have consumed alcohol. A witness could give factual evidence to indicate that a relevant person’s speech was slurred, pupils were dilated, or was walking unsteadily. In reality, though, witnesses would tend to simply say ‘the man was drunk’. This is, strictly, an opinion, and so would normally not be admissible.
Whats the best practice in regards to witnesses giving opinions?
It remains best practice to focus questions in examination on the observable facts rather than only eliciting the opinion.
Who has to establish that the expert giving evidence has sufficient expertise?
for the party who is relying on the expert evidence.
Why are expert witnesses different to other witnesses?
They are regarded more as independent consultants than partisan witnesses, and experts are asked to consider their role as being neutral and objective.
How does an excluded confession affect the admissibility of evidence?
Section 76(4) PACE provides: the fact that a confession is wholly or partly excluded in pursuance of this section shall not affect the admissibility in evidence— '(a) of any facts discovered as a result of the confession; or (b) where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, of so much of the confession as is necessary to show that he does so.'
Even where a confession is excluded, this does not prevent facts discovered as a result of it being relied upon in evidence. If, for example, the police locate the body of a murder victim following the confession of a defendant, even if that confession is excluded under s.76(2)(a) or(b), the fact of the discovery of the body in that place is still admissible under s.76(4)(a). There is, therefore, no rule excluding the ‘fruit of the poisoned tree’.
However, in these circumstances it would not be open to the prosecution to suggest that the body was discovered by reason of something said by the defendant (eg ‘Members of the jury, we cannot tell you what the defendant said, but as a result of what the defendant said the police discovered the body of the deceased.’). To do so would be to circumvent the exclusion of the confession itself.
Can the excluded confession be used to prove something other than the confession?
Section 76(4)(b) concerns situations where, even though the words of the confession have been excluded, the prosecution wants to use such part of the confession as is necessary to show the accused speaks, writes or expresses himself in a particular way.
e.g. The appellant was convicted of criminal damage by scratching ‘Fck you Jutin’ on a number of cars. The most potent piece of evidence against him derived from what had emerged when the appellant had attended a police interview with his solicitor. The interviewing officer said this: ‘On four of the cars was some writing. I want you to write it for me. It does not matter the style of the writing, how it is spelt, just make it as you see fit. The words are: “Fck you, Justin”.’ The officer said that he wanted it written out 12 times. The appellant then wrote out the words ‘F*ck you Jutin’ and later admitted during the course of the interview that he spelt the word ‘Justin’ J-U-T-I-N. The defence applied to exclude the evidence under s.76 but the judge refused to exclude it.
On appeal it was held that under s.76(2)(b) PACE there was nothing said or done which was likely, in the circumstances existing at the time, to render what was said in interview unreliable. In any event, the words could be relied upon to show how Nottle spelt ‘Justin’ under the provisions of s.76(4)(b). There was no error or unfairness to Nottle in the admission of the evidence given in interview as to how he spelt the name ‘Justin’. In any event, even if what was said otherwise was to be excluded under s.76, the words could be relied upon to show how the appellant spelt ‘Justin’ under the provisions of s.76(4)(b).
What is the exclusion rule for unfair evidence (S78)?
‘(1) 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, having regard to all 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.
(2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.’
What are the four key elements to making or challenging application to exclude confessions?
1)Advance notification:
at the PTPH the judge will look at the defence statement and order for S78/s76 skeleton arguments to be made and will direct when the arguments will be heard.
2) Timing:
It is better to make the application before the trial commences, however, you can make it during a trial if there is no pressing need to deal with it at the outset.
3) Voir Dire:
Where the facts on both sides are disputed the judge will have to make findings of fact. This is done by way of a hearing called a voir dire (also known as a ‘trial within a trial’) where evidence is called.
During the voir dire the prosecution will call its evidence. The defence likewise are entitled to call evidence on a voir dire. Having heard the evidence, the judge will then resolve the disputed facts before ruling on the admissibility of a confession. A voir dire takes place in open court in the presence of the defendant and (when taking place in the Crown Court) in the absence of the jury.
4) Submissions:
A voir dire is only required if a factual matter relating to the substance of the legal argument requires resolution for the argument to proceed.
If the background facts are agreed then there is no need for a voir dire and the legal argument can be made on the agreed factual basis. If the prosecution was going to rely on it solely, and it was not admitted, then they have to give a no evidence and not guilty verdict.
What is an inference?
Put simply, an inference is a ‘common sense conclusion’.
If a man with a gun in his hand is found standing next to a body with gunshot wounds, an ‘inference’ can be drawn that he has just shot the person on the ground. An adverse inference is just that – a common sense conclusion that is adverse to the interests of a party in proceedings.
Juries are asked to make many inferences in the course of their deliberations.
What inference could be drawn from an accused’s silence in their interview?
Section 34 provides, in summary, that where the defendant withholds a fact when questioned under caution, or when being charged, which the defendant could reasonably be expected to mention, but presents it at trial, adverse inferences may be drawn. The inference may be relevant in determining guilt, determining whether there is a case to answer, or on an application to dismiss charges in the Crown Court. The provision enables the court to draw ‘such inferences as appear proper’. Its principal objective is to achieve early disclosure of a defendant’s account.
What is the effect of the accused’s failure to mention facts when questioned or charged?
if a defendant:
• Before charge/on being charged
• Whilst under caution
• Whilst being questioned by a police officer
• About the defendant’s suspected involvement in the offence
• Fails to mention a fact
• That the defendant could reasonably be expected to mention in the circumstances
• Later relies on that fact as part of their defence
• The tribunal of fact can draw any inferences that appear proper
What must the police do in a no comment interview?
If you read a transcript of a no comment interview, you will see that the interviewing officer will continue asking questions of the suspect long after it has become clear that they will answer ‘no comment’ to everything.
For an inference to be drawn under this section, the prosecution must prove that the defendant failed to answer questions in respect of the offence. If the police officer does not ask the right questions, defence counsel could legitimately say: ‘Well, the defendant wasn’t asked about the cannabis found in the fridge. Therefore you cannot draw an adverse inference from the fact that the defendant has only just mentioned at court that it belonged to someone else.’ There is no requirement to volunteer the fact in question.
