Excluding Confessions – s78 Flashcards
What is the key test under section 78 of PACE for excluding prosecution evidence?
A. Whether the police acted unlawfully
B. Whether the confession is unreliable
C. Whether the confession was obtained without legal advice
D. Whether the admission of the evidence would adversely affect the fairness of proceedings
D – Whether the admission of the evidence would adversely affect the fairness of proceedings
Explanation: Section 78 allows exclusion where admitting the evidence would have such an adverse effect on fairness that the court ought not to admit it.
Which of the following is true about section 78 PACE?
A. It applies only to defence evidence
B. It automatically excludes any confession obtained in breach of PACE
C. It allows exclusion only for unreliable confessions
D. It focuses on overall fairness, not just how the evidence was obtained
D – It focuses on overall fairness, not just how the evidence was obtained
Explanation: Section 78 is broader than s.76 and can be used to challenge any prosecution evidence where fairness is compromised.
Which of the following cannot be excluded using section 78?
A. A confession made under duress
B. A confession made in breach of Code C
C. Defence evidence offered by the accused
D. A confession where legal advice was denied
C – Defence evidence offered by the accused
Explanation: Section 78 only applies to prosecution evidence, not evidence from the defence or co-defendant.
Police question a suspect at the roadside without cautioning them. The suspect confesses to theft. The confession is recorded and used at trial. What principle may allow exclusion of this confession?
A. The fact that the confession was true
B. The fact that no solicitor was present
C. Section 76(2)(a) – oppression
D. Section 78 – unfairness in how the evidence was obtained
D – Section 78 – unfairness in how the evidence was obtained
Explanation: Questioning without caution may breach Code C. If this affects fairness, the confession may be excluded under s.78.
A confession is made by a youth without an appropriate adult present. There was no physical force, but the youth seemed confused and unsure. What is the best application to exclude the confession?
A. Section 78 due to unfairness
B. Section 76(2)(a) due to oppression
C. Section 76(2)(b) due to unreliability
D. Common law exclusion
A – Section 78 due to unfairness
Explanation: The lack of an appropriate adult can result in an unfair process under Code C. s.78 is appropriate for this type of procedural unfairness.
Police fail to caution a suspect before an interview. The suspect confesses. Which of the following is most likely?
A. The confession must be admitted because it was true
B. The confession must be excluded under s.76(2)(a)
C. The confession may be excluded under s.76(2)(b) and/or s.78
D. The confession cannot be excluded unless the police used violence
C – The confession may be excluded under s.76(2)(b) and/or s.78
Explanation: Failure to caution may lead to a claim of unreliability (s.76(2)(b)) or unfairness (s.78), especially if it breaches Code C.
In R v Keenan, what was the key reason the court ruled the confession inadmissible?
A. The confession was obtained by threat of violence
B. The defendant was denied bail
C. There were significant and substantial breaches of Code C
D. The police failed to read the defendant their rights
C – There were significant and substantial breaches of Code C
Explanation: The confession was admitted despite major procedural failures in recording and verifying it, which led to unfairness.
What is the role of the voir dire in a s.78 application?
A. It determines if a confession was true or false
B. It allows the defence to cross-examine the jury
C. It is a mini-trial to resolve factual disputes before a legal ruling
D. It replaces the trial if a confession is excluded
C – It is a mini-trial to resolve factual disputes before a legal ruling
Explanation: A voir dire allows the judge (without the jury) to hear evidence and decide factual disputes relevant to admissibility.
Which of the following is most accurate about using both s.76 and s.78 together?
A. The two sections are mutually exclusive
B. s.76 covers unfairness, while s.78 only covers oppression
C. Both can be used together, with s.78 acting as a broader safeguard
D. If s.76 fails, s.78 cannot be used
C – Both can be used together, with s.78 acting as a broader safeguard
Explanation: It’s common to rely on s.76 and, in the alternative, s.78. The court may exclude under either if the conditions are met.
Police deny a vulnerable adult access to a solicitor during questioning. The suspect confesses. What is the best basis for exclusion?
A. Section 76(2)(a) – oppression
B. Section 78 – unfairness
C. No exclusion is needed
D. Section 76(2)(b) – unreliability due to the absence of legal advice
D – Section 76(2)(b) – unreliability due to the absence of legal advice
Explanation: Denying a vulnerable suspect legal advice may render a confession unreliable under s.76(2)(b).
Which of the following best describes the court’s concern under s.78?
A. Was the confession reliable?
B. Did the police follow internal procedures?
C. Was the police conduct intentional?
D. Was the fairness of the trial seriously compromised?
D – Was the fairness of the trial seriously compromised?
Explanation: Section 78 is all about trial fairness, not whether the evidence is true or how it was obtained.
A confession is excluded under s.76. Can the police still use the discovery of a body following that confession?
A. No, it must all be excluded
B. Yes, under section 76(4)(a), but only if the defendant testifies
C. Yes, under section 76(4)(a), if the prosecution explains how it was discovered
D. Yes, under section 76(4)(a), if the defence explains how it was discovered
D – Yes, under section 76(4)(a), if the defence explains how it was discovered
Explanation: If facts (like a body) are discovered due to an excluded confession, they may still be admissible if the defence provides how they were found, per s.76(5).
