s76 Application to Exclude or Admit Confessions

Question 1

Structure of submissions

Answer 1

1. Identify that it is a confession (definition in s82 PACE). Since confessions are a matter in issue between prosecution and defence, they are prima facie admissible
2. However… this is NOT admissible because it was obtained as a result of oppression OR things said or done which renders the confession unreliable
   - remind court that confession MUST be excluded in evidence if prosecution does not discharge the burden of proof under s76 PACE
   - remind the court that once admissibility is challenged, it is for the prosecution to prove beyond reasonable doubt that the confession is NOT unreliable or obtained as a result of oppression
3. Which ground & identify the details
   a) oppression
   b) unreliability
4. Demonstrate causal link - there must be a causal link between oppression/unreliability and the confession
5. Remind the court that they may also exclude confession owing to their discretionary power under s78 (admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it)

Question 2

What is the definition of a confession?

Answer 2

s82. PACE it ‘includes any statement wholly or partly adverse to the person making it, whether made to a person in authority or not and whether made in words or otherwise’

• Does not have to be under caution to be admissible

Question 3

What is the burden of proof for exclusion under s76?

Answer 3

Burden of proof = prosecution must prove beyond reasonable doubt

e.g., that the confession was not obtained by oppression / result of things said or done to render it unreliable

Question 4

What happens if the prosecution cannot discharge the burden?

Answer 4

The confession MUST be excluded in evidence against the accused if prosecution do not discharge the burden (s76 PACE)

Question 5

What are examples of unreliability (s76(b))?

Answer 5

• not given proper rest / no sleep
• denial of access to legal advice
• not cautioned at the start of the interview
• no proper record
• result of inducement
• hostile and aggressive questioning
• failure to allow sufficient rest prior to interview