Exlusions of Admissible Evidence Flashcards
What is a confession?
An out of court statement that called j to the category of hearsay. They are statements made in words or otherwise that are wholly or partly adverse to the person who made it. These include…
- nodding in response to questions
- video of the suspect leading police to evidence
- a filmed re-enactment of the crime
They are NOT
- silence or a lack of response
- They do not need to be a full statement of guilt but can be responses to questions which are adverse to the defendant
How can a confession be used in joint proceedings (2 or more defendants)?
A confession by 1 defendant can be used in evidence against another person charged in the same proceedings.
THEY MUST BE CHARGE IN THE SAME PROCEEDINGS, NOT A SEPARATE OFFENCE!
Who’s responsibility is it to prove a confession was not obtained by oppression or is unreliable?
The prosecution
What is oppression and what effect can oppression have on a confession?
It includes torture, inhuman or degrading treatment or threat or use of violence
It can cause it to be excluded and any subsequent confessions obtained legitimately can also be ruled out
The question is not the truth of what is said but if the person has been mistreated to get that information
When an issue over oppression is raised by the defence THE PROSECUTION MUST DISPROVE IT
The oppression MUST have been against the person making the confession
- a failure to follow PACE might result in oppression but it is not an automatic reason to exclude a confession
What can constitute oppression?
- bullying manner in interview
- being kept in custody longer than necessary
- being wrongly informed of an identification
- failure to have an appropriate adult present
- threatening to interview other people and disclose offences to coerce a confession
- held without access to a solicitor
- interviews conducted over a 3 hour period in a manner calculated to get a confession
- being interviewed multiple times and refused access to their family
What are examples of unreliability?
- no caution given, not asked about legal advice and not shown the note of the interview
- exciting hopes or fears in order to after the kind to crumble and talk where they would stay silent
- breaching the PACE codes of practice
- any illness (vomiting in interview) / mental health issues
- inappropriate adult
- no appropriate adult present
- suggesting outcomes to a suspect (get treatment rather than go to prison)
- offering to release someone from custody if they confess or an employer offering to drop charges if they confess.
- force being used prior to confession
Is evidence obtained by entrapment admissible?
Generally yes; the court is not at Liberty to discard evidence which is admissible on the grounds it is obtained unfairly. They. An only exclude it if the evidence would have a prejudicial effect of the trial.
- remember the 2 men tricked into a jail cell together post charge and made admissions whilst together. The fact they were tricked in there and covertly recorded did not amount to making it admissible
Are undercover operations admissible?
This depends
- if the officer endives someone to commit a crime they otherwise wouldn’t have, it is an abuse of power
- if the officer merely presents an opportunity that the defendant takes which results in a crime that is their fault and it is legal
- entrapment techniques can only be used to induce criminal behaviour is they are no more than the normal temptations that arise in the course of criminal behaviour- giving someone the opportunity to break the law and them taking it FREELY
- the greater the inducement the greater the risk of entrapment
- the greater the intrusion into the suspects personal life, the greater the scrutiny on proportionality
- the greater the suspect vulnerability the greater the risk of effect of inducement
- think asking a drug dealer for “blow” and he offers to supply
- where a suspect forms the intent and plan to commit an offence and the police merely facilitate making it possible, this will not be entrapment
