Excluding evidence - PACE Flashcards
What is 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 not.
s82 PACE
Can a confession be admitted in evidence?
Yes, so far as it is relevant to the matter in issue and is not excluded by the court.
What does Section 76 PACE address regarding confessions?
Exclusion of confessions obtained by:
a. oppression or
b. anything said or done likely to render the confession unreliable.
What is an example of oppression in obtaining a confession?
Use or threat of violence.
How is oppression defined in the context of confessions?
Subjective – use character and attributes of the accused.
What must be identified to assess the reliability of a confession?
The thing said or done which may have influenced the confession.
What are positive acts that may affect the reliability of a confession?
Promise to release from custody, promise of bail conditional on confession, or threats to family members.
What is an example of an omission that may affect confession reliability?
Interviewing a young or mentally vulnerable suspect without an appropriate adult.
What must the thing said or done be in relation to the suspect?
Must come from something external to the person.
Can a suspect rely on Section 76 if they made an admission hoping for bail without inducement?
No, they cannot rely on Section 76.
What is often related to the thing said or done when assessing confessions?
A breach of PACE Code C.
What must the court decide regarding the likelihood of confession reliability?
Whether the thing said or done is likely in the circumstances to render the confession unreliable - this is a hypothetical q therefore court must decide whether there is a likelihood that any confession would be unreliable in the circumstances of the time
What circumstances may lead to a confession being unreliable?
- Sleep deprivation - R v Trussler
- Failure to caution - R v Doolan
- Denial of access to legal advice - R v McGovern
What must the prosecution prove regarding the confession?
P must prove beyond reasonable doubt that the confession was not obtained by oppression or other means rendering it unreliable.
What can the defense do even if the prosecution proves the confession is admissible?
Discredit the evidence and reference it in closing speech.
What can still be relied upon in evidence even if a confession is excluded?
Facts discovered as a result of the confession.
s76(4) PACE
What can the prosecution use from an excluded confession?
Part of the confession necessary to show the accused speaks, writes, or expresses himself in a particular way.
Nottle
What is the 3 stage approach from Barry regarding s76(2)(b)?
- Identify the thing said or done
- Was the thing said or done likely to render a confession unreliable in the circumstnaces
- Has P proved beyond reasonable doubt that the confession was not obtained in consequence of a thing said or done? (q of fact for the judge)
If the P cannot prove beyond reasonable doubt that the confession was not obtained by oppression/a thing said or done, what is the effect on the confession?
It **must ** be excluded by the court.
What is the effect of s78 PACE?
The court may refuse to allow evidence on which P seeks to rely if the admission of the evidence would have such an adverse effect on the fairness of proceedings that it ought not fairly to be included
Can the prosecution use S.78 to exclude evidence that a defendant seeks to admit?
No, the prosecution cannot use S.78 to exclude evidence that a defendant seeks to admit.
What types of evidence are often excluded under S.78?
Evidence obtained unlawfully, improperly, or unfairly, such as breaches of PACE or ECHR.
Does irregularly obtained evidence automatically become inadmissible?
No - it must cause unfairness.
Although bad faith/significant breaches will likely lead to the exclusion of evidence
Give examples of when s78 has been used to exclude evidence:
- The fundamental right of access to legal advice has been denied (i.e waiver of the right to legal advice was not voluntary, informed or unequivocal)
- There suspect wasn’t cautioned before questioning
- Where no AA was provided where necessary
- Where ID procedures have not been followed
What is required for youth or vulnerable suspects during questioning?
An appropriate adult must be provided.
What is the principal consideration when applying under S.78?
The effect of the breach on the fairness of the proceedings NOT the seriousess of the breach itself
When can an application under S.78 PACE be made?
Before the trial, at the commencement of the trial, or just prior to the prosecution seeking to admit the evidence.
When will an application to exclude evidence take place if excluding evidence under S.78 would fatally weaken the prosecution case?
A judge will often want that argument to take place at a pre-trial hearing or at the commencement of the trial.
In the CC, this means before the jury is sworn.
When may a judge direct that a less significant application under s78 be dealt with?
At a convenient moment during the trial itself.
What should the defence include in the Defence Statement relating to exclusion of evidence?
The point of law related to the application under S.78.
