s.76 Flashcards

1
Q

What does s.76 apply to?

A

A confession that was obtained by oppression (even if the court thinks the confession was true).

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2
Q

What is a confession?

A

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.

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3
Q

If proved, is s.76 discretionary?

A

No it is mandatory

Note: s.78 (adverse effect) is discretionary

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4
Q

S.76 - When might a confession not be given in evidence?

A

where obtained:

  • by oppression of the person who made it

OR

  • in consequence of anything
  • said or done
  • which was likely, in the circumstances existing at the time,
  • to render unreliable
  • any confession which might be made by him in consequence thereof.
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5
Q

S.76 - Can the court require the prosecution to prove that a confession was not made under duress?

A

Yes - the prosecution must prove beyond all reasonable doubt

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6
Q

S.76 Where something was said or done to render a confession unreliable, does the court consider the reliability of the actual confession made?

A

No - Objective

The court must decide whether there is a likelihood that any confession would be unreliable in the circumstances prevailing at the time (R v Gill)

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7
Q

S.76 If a confession is found to be unreliable, does that prevent other evidence related to the confession from being admissible?

A

No

exclusion does not affect the admissibility in evidence of:

  • facts discovered
  • way speaks, writes or expresses himself.

However, you can’t say that the facts were found because of the confession.

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8
Q

When must a s.76 or s.78 application be made in the Magistrates Court?

A

In a defence statement provided 14 days before the hearing

Prosecution must respond 7 days before the hearing

Any s.76 matter should be dealt with as a preliminary issue (s.78 can be dealt with later)

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9
Q

When must a s.76 or s.78 application be made in the Crown Court?

A

Should be in the defence statement

  • Normally PTPH or hearing after the PTPH or Just before the case opens
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