Evidence IIII (Turnbull, confessions) Flashcards
What type of evidence are the Turnbull Guidelines concerned with?
Visual identification
Investigation stage = PACE Code D
Trial stage = Turnbull guidelines
When should a Turnbull direction be given?
When case against accused depends ‘wholly or substantially’ on the correctness of visual identification and D maintains witness - who picked them in formal ID procedure - was mistaken
Is a Turnbull direction necessary in cases of alleged recognition?
Where witness has seen someone many times on street and then thought they recognised them in ID procedure
Yes - can still be wrong
When is a Turnbull direction not required?
Where case does not rest on identification evidence
When is a Turnbull direction unlikely to be required?
Where presence at the scene is admitted but D disputes role in incident
But each case turns on own facts!
What are the 3 key elements of a Turnbull warning?
- Instruct jury of need for the warning (mistaken witnesses can be convincing)
- Direct jury to examine circumstances in which identification by witness(es) came to be made
- Remind jury of specific weaknesses in identification evidence
What evidence is capable of supporting the identification (which the judge should direct jury to consider)?
- Scientific evidence
- Multiple identifications (if sufficient)
- Accused’s bad character/previous convictions
- Accused’s silence on interview (if proper for AI to be drawn)
- Accused’s admissions at scene/in interview/witness box
Under the Turnbull guidelines, when must judge stop the case?
At the close of prosecution’s case if it is poor and unsupported
Re visual identification, the judge must answer two principal questions:
- What is the quality of the identification evidence?
- Is there other evidence to support the correctness of the identification?
Is quality of evidence assessed before or after Turnbull direction?
Before
When assessing the quality of the visual identification evidence, what circumstances should judge examine?
- Time witness could observe person
- Distance between witness and person
- Light/visibility
- Interference with observation (e.g. obstruction)
- If witness had seen D before and in what circumstances
- Time between original observation and formal ID procedure
- Significant difference between description given to police and appearance of D
What should happen if the quality of identification evidence is good or bad?
- Good = jury safely left to assess value of identifying evidence provided adequate Turnbull warning given for special need for caution
- Bad = judge considers if any other evidence to support correctness of identification
If the quality of evidence is bad and the judge considers other evidence to support correctness of identification, what should happen if there is no other/some supporting evidence? In what circumstances will a Turnbull warning be given?
- No other = judge should withdraw case from jury and direct acquittal (no Turnbull warning given)
- Some supporting = judge can leave weak identification to jury to be assessed alongside supporting evidence (Turnbull warning given)
Summary - will a Turnbull direction always be required?
Where the D disputes yes - unless case does not rest on it or the evidence is poor quality and there is no other supporting evidence (in which case judge should withdraw case)
Turnbull summary
What is a confession under s82?
Any statement wholly or partly adverse to the person who made it whether made to person in authority or not and whether in words or otherwise
What does the wide definition of a confession catch? What will it not catch?
Catches:
- Unequivocal confessions of guilt ‘I did it
- Mixed statements - partly adverse maybe, I didn’t do it but I was glad to see them die
- Non-word gesture - depending on contextnod, sign, gesture
Will not catch wholly exculpatory statements “it was nothing to do with me”
Under s76, what are the two ways a confession can be challenged?
- S76(2)(a) - oppression
- S76(2)(b) - anything said or done which made the confession unreliable as a result
Actual wording for s76(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
Does s76 automatically come into play to challenge confessions? What does s76(3) provide?
- No - only operates where represented to court by defence that s76(2)(a) or (b) applies
- S76(3) provides that court can require prosecution to prove confession was not obtained as set out in (a) and (b)
How is ‘oppression’ defined as part of s76(2)(a)?
Confession obtained by oppression of person who made it
Widely and given ordinary meaning - including torture, inhumane/degrading treatment, and use/threat of violence
‘Exercise of power in burdensom, harsh or wrongful manner’ (Fulling)
Is ‘oppression’ assessed the same for everyone?
No - what might be oppressive to one person may not be appressive to another - legitimate to consider character/attributes of accused
Once defence raise that confession was obtained by oppression (or court acts on its own under s76(3)), what must the prosecution do? What if they cannot do this?
- Prosecution must prove beyond reasonable doubt it was not so obtained
- If they cannot = confession must be excluded as inadmissible evidence
If the prosecution cannot prove beyond reasonable doubt that the confession was not obtained by oppression and so the confession must be excluded, does it matter even if the confession was true?
Does not matter - must still be excluded
If judge is satisfied that prosecution has proved beyond reasonable doubt that a confession was not obtained by oppression (and so it is not excluded), is that the end of the story for the defence?
No - defence can seek to discredit the evidence during trial by cross-examination and by making references to it in closing speech; obtained by oppression and so unreliable
Then
How are cases of s76(2)(b) - things said or done - approached?
3 stage test from R v Barry
- Identify thing said/done (requires judge to consider everything said/done by police)
- Ask whether what was said/done was likely in circumstances to render unreliable a confession made as a consequence (objective test)
- Ask whether prosecution has proved beyond reasonable doubt that confession was not obtained in consequence of thing said/done (question of fact for judge; common sense)
What will the thing said/done usually be? What if it amounts to oppression, which s76(2) is used here?
- Thing said/done will usually be a breach of PACE (detention, treatment, questioning)
- If it amounts to oppression = either or both provisions can be used
Breach of PACE includes right not to be held incommunicado, to legal advice, cautioned before being questioned etc.
What is the hypothetical question asked when deciding if thing said/done was likely to have rendered a confession unreliable? What does ‘unreliable’ mean?
- Hypothetical Q = whether there is a likelihood that any confession would be unreliable in the prevailing circumstances
- Unreliable = cannot be relied upon as being the truth
What makes the test under s76(2)(b) an objective one? What are some examples?
- Objective = taking into accout all the circumstances
- Examples = D without rest for 18 hours, failure to caution at interview, denial of access to legal advice
What must prosecution do once defence raises s76(2)(b)?
Same as s76(2)(a) - prove beyond reasonable doubt that confession was not obtained in consequence of thing said/done
What does the whole/partial exclusion of evidence (as a result of s76(2)) not affect the admissibility of?
- S76(4)(a) - Any facts discovered as a result of the confession
- S76(4)(b) The speech, writing or expressions of the accused (where confession relevant to showing how the accused does so)
What does it mean for facts discovered as a result of the confession to not be excluded?
Facts discovered as a result of confession can be relied upon in evidence (no rule excluding the ‘fruit of the poisoned tree’)
E.g. police locate body of a murder victim following confession of a D, confession excluded = the fact of the discovery of the body in that place remains admissible
What can the prosecution not do where the confession is excluded and they rely on the facts discovered as a result of it?
The prosecution cannot suggest that body was discovered by reason of something D said
When will ‘speech, writing or expressions’ of the accused be relevant?
When relied upon following exclusion of confession
Where prosecution wants to use such part of confession as is necessary to show accused speaks, writes or expresses himself in particular way
Nottle - the way D spelled a name (scratched ‘fuck you Justin’ on a number of cars) could be relied upon even if evidence excluded under s76
How does s78 fit into the exclusion of confessions (s76)?
Common practice for defence to seek to exclude a confession under s76 and, as an alternative, s78
As the same facts will be used in an application, why would s78 be used when s76 is already being used?
S78 could exert a broader protective sweep than s76 and act as an override protection for a detainee (s78 + common law enables court to examine a case from perspective of overall fairness)
E.g. detainee woefully deprived of legal advice but in circumstances where it would not be said that interview without representation was ‘likely to render any confession unreliable’ - s78 might nonetheless intervene to exclude confession by incorporating broader Art 6 type considerations
How was R v Keenan helpful in highlighting the importance of th Codes in safeguarding not only the interests of a suspect but also interests of the police in context of s78 exclusion?
Good illustration of how s78 will apply when s76 does not
- Pros relied on confession (which appellant denied making) that was allegedly made to police officers in charge room
- Defence objected at trial on basis of Code requiring police to make record of interview and to allow suspect to read and sign it as correct or indicate how he saw it as inaccurate
- Court held on appeal that unfairness caused by appellant as he had been denied contemporaneous opportunities to correct accuracies in what police alleged to have said
These measures allow the suspect to deal with the alleged confession at the time it is said that the suspect made it. They also provide some measure of protection for the police should it be suggested subsequently that they invented the confession.
Does evidence being obtained irregularly (e.g. in breach of codes) make it intrinsically inadmissible under s78?
No - key test is whether the admission of evidence would have such an adverse effect on fairness of proceedings that court ought not to admit it
Not concerned with marking disapproval of police conduct/punishing prosecution - simply whether fairness dictates that evidence should be excluded in circumstances
Regarding the application to exclude evidence of a confession, how does advance notification differ between magistrates’ and Crown?
- Magistrates = defence skeleton argument in support 10 business days before trial, prosecution response 5 business days after
- Crown = defence skeleton argument in support of any s76/s78 arguments, when prosecution serve a response, and when arguments will be heard
Regarding application to exclude evidence of a confession, what is the difference between magistrates’ and Crown re when should it be dealt with?
- Magistrates’ - as preliminary issue
- Crown - at pre-trial hearing listed specifically for this purpose or dealt with just prior to opening case to jury
In the Crown, how is it decided whether application to exclude confession evidence will be dealt with at a pre-trial hearing or just prior to opening case to jury?
- Pre-trial hearing if prosecution needs to know if confession admissible to open case in meaningful way/result will be decisive (continue with case or not)
- Just prior to opening case where no pressing need to deal with at outset
Where application to exclude confession evidence will be dealt with during the trial, what should prosecution not do?
Adduce evidence before court or refer to it in opening speech
Where a challenge is raised under s76(2)(a)or(b) and facts on both sides are disputed, what needs to happen?
A voir dire - judge will resolve disputed facts before ruling on admissibility in absence of jury
NB a hearing on the application to exclude evidence will also be dealt with in absence of jury (in pre-trial hearing, prior to opening of a case), but will not be considered a ‘voir dire’
What happens if a judge fails to resolve disputed facts on a voir dire before ruling on admissibility?
In context of s76 application
The resulting conviction is likely to be quashed (so important to decide facts in voir dire)
Logically impossible for judge to be satisfied that prosecution has proved BRD that confession has not been/might not have been obtained by either of means set out in s76(2) if judge has heard no evidence either way
Will a voir dire always be required in the context of a s76 application?
No - if the background facts are agreed, there is no need for a voir dire and legal arguments can be made on agreed factual basis
Defence rely on breaches of police for s76 argument, prosecution agree that these breaches occurred but wish to argue they do not amount to oppression/unreliability
If the ruling of a confession exclusion application is to exclude the confession, what can the prosecution not do? What if this deprives prosecution of only real evidence?
- Cannot refer to it during trial
- If no more real evidence left = pros has no option but to offer no evidence against D and a not guilty verdict entered
If the ruling is that the confession should not be excluded and the prosecution can adduce it, what can D do?
Raise same issues before jury e.g. suggest to jury that confession is unreliable in spite of judge ruling it admissible
