PACE and Confessions Flashcards
PACE 1984 section 78(1) deals with which discretionary power?
The power to exclude otherwise admissible prosecution evidence.
On what basis can the court refuse evidence under section 78(1) PACE?
Having regard to all the circumstances, the admission of evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.
When will the Court of Appeal intervene with a first-instance judge’s section 78 decision?
Where they either didn’t consider it, or acted in a Wednesbury unreasonable manner.
Can section 78(1) be used to attempt to exclude any evidence?
Yes.
Which is wider in scope? Exclusion discretion under PACE or under common law?
PACE extends pre-existing discretions by reason of exclusion of evidence obtained unlawfully, improperly or unfairly.
Under section 82 PACE, 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 otherwise.
(Includes confessions made to friends/colleagues)
Under section 76 PACE, when is a confession admissible?
Tip: ORR
When it is relevant to any issue in the proceedings and is not excluded on the grounds of oppression or in consequence of anything said or do conducive to unreliability.
Oppression
Relevant
Reliable
Must it be the defendant who ‘gave’ the confession?
Yes.
Does a guilty plea constitute a confession under section 82 PACE?
Yes.
Must a statement must be oral or spoken?
No. It probably includes a nod/thumbs up.
If conduct is not intended to convey guilt, but could be interpreted as doing so, does it count as a statement?
No. For example, driving away at speed from the scene of an accident is not a confession to which PACE applies.
Are ‘mixed statements’ (part confession/part exculpation) confessions for the purposes of PACE?
Yes.
Under section 76 PACE, what are the two grounds on which the court may not allow a confession to be given as evidence?
Where the confession may have been obtained by oppression of the person who made it;
Where the circumstances of the time render unreliable any confession made;
(Prosecution must prove BRD that the confession was not obtained as aforesaid.)
When will the prosecution have to prove the admissibility of the confession they rely upon?
Where the defence represents that it is inadmissible under section 76;
Where the court, of its own motion, requires proof of admissibility under section 76(3).
If the prosecution fails to prove admissibility, does the court have a discretion to accept the evidence anyway?
No.
Define oppression as per section 76(8) PACE.
Oppression includes torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture.)
In case law, it is given its ordinary meaning.
Does raising one’s voice and using bad language in an interview constitute oppression.
No; that would give the word a completely false meaning.
Are the character and attributes of the accused relevant for determining what actions constitute oppression?
Yes; for example, an experienced professional criminal might expect a vigorous interrogation.
If a confession is made in consequence of a threat or inducement, will it be excluded?
No, unless the circumstances were such that any resulting confession would be likely to be unreliable.
True or False. The judge considers whether THIS particular confession is unreliable.
FALSE. The judge considers whether ANY confession which the accused might make in consequence of what was said or done was likely to be rendered unreliable.
Would taking cocaine before confessing have a material bearing on the admissibility of a confession?
Yes, if regarded as one of the circumstances referred to in section 76(2)(b). (MAKING THE CONFESSION UNRELIABLE IN ALL THE CIRCUMSTANCES.)
Does ‘something said or done’ include breaches by the police of PACE obligations?
Yes.
Does mere breach of a Code of Practice lead to inadmissibility of evidence?
No. Adverse effect must be shown.
What does Code C (Code of Practice) detail?
Tip: TQD
Detention, treatment and questioning of persons by police officers.
Can the prosecution lead and rely upon evidence of anything said by an accused without the benefit of legal advice during questioning under detention at a police station?
No, unless compelling circumstances exceptionally justify denial of access to a lawyer without unduly prejudicing the defence.
Do breaches of interview conduct necessarily lead to inadmissibility of evidence?
No; a breach may be insufficiently significant or substantial to trigger PACE section 78 (a finding of adverse effect on fairness of proceedings such that evidence should not be admitted).
True or False. Bad faith on the part of the police makes it more likely for evidence to be excluded.
True, but it is not determinative.
What is the purpose of voir dire?
To allow factual issues to be resolved in the absence of the jury with the benefit of D’s testimony, should he choose to testify.
Are voir dires possible in summary trials at the Magistrates.
Yes. It means magistrates may have to put objectionable material out of their minds when considering guilty.
Technically, these wouldn’t be voir dires, as the tribunal of law is not hearing evidence in absence of the tribunal of fact.
It is a controversial issue.
Does the exclusion of a confession affect admissibility of evidence discovered as a result of the confession?
No.
If a confession was held inadmissible, but as a result of it certain facts were discovered (e.g. D confesses to stealing £10k, and they then find it under her bed), is that fact inadmissible?
No. That would be ridiculous.
Which ‘irregular’ means of obtaining evidence still render it admissible? (6)
Theft
Unlawful search of persons
Unlawful search of premises
Use of agents provocateurs
Eavesdropping
Invasion of privacy
