Excluding Confessions - s76 Flashcards
What is the definition of a confession?
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
What falls within the definition of a confession in PACE 1984?
- Unequivocal confessions of guilt
- Mixed statements (partly inculpatory and partly exculpatory)
- Body language (i.e. a nod)
What is a partly inculpatory and partly exculpatory statement example?
I didn’t chef him, but I was glad to see him die
When will confessions not be allowed as per s76?
- If obtained by oppression
- If unreliable
What is included in oppression?
- Torture
- Inhuman or degrading treatment
- Use of threat of violence
What is the R v Fulling definition of oppression?
- Exercise of authority in a burdensome, harsh or wrongful manner;
- Unjust or cruel;
- Imposition of unreasonable or unjust burdens
If the defence represents confession obtained by oppression, or court chooses to act of its own motion under s76, what must the prosecution do?
Prove beyond a reasonable doubt that it was not so obtained
What is the three step approach to unreliability of confessions?
1) Identify thing said or done which would render it unreliable
2) Ask whether the circumstances render it unreliable (objective test)
3) Ask whether prosecution has proved beyond a reasonable doubt confession was not obtained in consequence of unreliability
What sort of things said or done could render a confession unreliable?
- Promise to release if they tell all
- Promise of bail on a full confession
- Threat to arrest suspect’s partner if they do not cooperate
When asking whether circumstances would render it unreliable, what does that mean?
The test is not whether it was untruthful or inaccurate, but if the circumstances at the time of the confession, likely rendered it to be unreliable
What are some examples of unreliable confession?
- Deprivation of sleep
- Failure to caution
- Denial of access to legal advice
If a confession is wholly or partly excluded, what would it not affect the admissibility of?
- Any facts discovered as a result of confession
- If confession is relevant to showing that accused speaks, writes or expresses himself in a certain way
Can the prosecution suggest that evidence was found as a result of an excluded confession?
No, it would circumvent the exclusion of the confession…
What is a partly inculpatory and partly exculpatory statement example?
I didn’t chef him, but I was glad to see him die
When will confessions not be allowed as per s76?
- If obtained by oppression
- If unreliable
What is included in oppression?
- Torture
- Inhuman or degrading treatment
- Use of threat of violence
What is the R v Fulling definition of oppression?
- Exercise of authority in a burdensome, harsh or wrongful manner;
- Unjust or cruel;
- Imposition of unreasonable or unjust burdens
If the defence represents confession obtained by oppression, or court chooses to act of its own motion under s76, what must the prosecution do?
Prove beyond a reasonable doubt that it was not so obtained
What is the three step approach to unreliability of confessions?
1) Identify thing said or done which would render it unreliable
2) Ask whether the circumstances render it unreliable (objective test)
3) Ask whether prosecution has proved beyond a reasonable doubt confession was not obtained in consequence of unreliability
What sort of things said or done could render a confession unreliable?
- Promise to release if they tell all
- Promise of bail on a full confession
- Threat to arrest suspect’s partner if they do not cooperate
When asking whether circumstances would render it unreliable, what does that mean?
The test is not whether it was untruthful or inaccurate, but if the circumstances at the time of the confession, likely rendered it to be unreliable
What are some examples of unreliable confession?
- Deprivation of sleep
- Failure to caution
- Denial of access to legal advice
If a confession is wholly or partly excluded, what would it not affect the admissibility of?
- Any facts discovered as a result of confession
- If confession is relevant to showing that accused speaks, writes or expresses himself in a certain way
Can the prosecution suggest that evidence was found as a result of an excluded confession?
No, it would circumvent the exclusion of the confession…
