T16- Confession and Unlawfully obtained evidence

Question 1

Q: What is a confession in the context of criminal evidence?

Answer 1

A confession is a form of hearsay—an out of court statement that is admissible to prove the truth of its contents.

It is an exception to the general rule that hearsay is inadmissible.

Question 2

Against whom is a confession admissible in court?

Answer 2

A confession is only admissible against the defendant who made it.

If it implicates a co-defendant, that part is not admissible against the co-defendant.

Question 3

What statute regulates the admissibility of confessions?

Answer 3

S,76 PACE

Question 4

What does section 76 of PACE cover?

Answer 4

Section 76 of PACE governs the admissibility of confessions, especially focusing on how they were obtained

(e.g., whether through oppression or unreliability).

Question 5

What does section 78 of PACE allow the court to do?

Answer 5

Section 78 allows the court to exclude any prosecution evidence (including confessions) if its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

Question 6

What does section 82(3) of PACE preserve?

Answer 6

Section 82(3) preserves the common law rule that the court MAY exclude any evidence if its prejudicial effect outweighs its probative value.

EXCLUDE ANY EVIDENCE IF PREJUDICAL EFFECT OUTWEIGHS ITS PROBATIVE VALUE

Question 7

Under what provision are confessions admissible?

Answer 7

Confessions are admissible by virtue of section 76(1) of the Police and Criminal Evidence Act 1984 (PACE).

Question 8

How is a confession defined under PACE?

Answer 8

A confession is defined in section 82(1) of PACE as any statement wholly or partly adverse to the person who made it.

Question 9

What kinds of statements are considered confessions?

Answer 9

1. Statements with a clear admission of guilt.
2. Statements containing a general denial but also adverse elements to the defendant’s case (e.g., “I was at the burglary scene, but didn’t take part”).
3. Statements admitting the offence but denying key aspects (e.g., “I punched him, but didn’t kick him in the face—only in the body”).

Question 10

What is a mixed statement?

Answer 10

A mixed statement includes both incriminating and exculpatory content—i.e., the defendant admits to certain actions while denying or minimizing others.

Question 11

What are inculpatory and exculpatory statements?

Answer 11

1. An inculpatory statement is one that is incriminating.
2. An exculpatory statement is one that denies the offence or limits involvement.

Question 12

What is the admissibility rule for mixed statements?

Answer 12

If a statement is mixed, the entire statement is admissible—not just the part which is a confession.

Question 13

Are wholly exculpatory statements admissible?

Answer 13

Yes. They are usually admitted to show the defendant’s reaction to the accusation.

Even if the defendant denies the offence entirely, the interview record is still adduced as evidence in trial.

Question 14

In what forms can confessions be made?

Answer 14

Confessions can be oral or written and can be made to any person, whether in authority or not

Question 15

What is the most common form of confession?

Answer 15

The most common form is when a defendant admits the offence during a police interview.

Question 16

What are some other contexts in which confessions might be made?

Answer 16

1. Cell confessions: Alleged admissions to a cell mate while in custody.
2. Admissions to friends or family: Sometimes brought before the court as evidence.

Question 17

Under what authority is confession evidence generally admissible?

Answer 17

Confession evidence is generally admissible by virtue of section 76 of PACE and the common law.

Question 18

When can confession evidence be excluded under s76(2) of PACE?

Answer 18

If the defence argues that the confession was, or may have been, obtained by oppression or in circumstances that make it unreliable, the prosecution must prove beyond reasonable doubt that it was not so obtained, as per section 76(2) of PACE.

Question 19

Can the court raise concerns about the confession on its own?

Answer 19

Yes. Under section 76(3) of PACE, the court can, of its own motion, require the prosecution to prove the confession was not obtained through oppression or unreliability.

Question 20

What must happen before the court will examine how the confession was obtained?

Answer 20

The defence must make representations, or the court must consider it necessary to do so before it will enquire into the circumstances of the confession.

Question 21

When is the admissibility of confession evidence usually raised?

Answer 21

1. In the magistrates’ court: At the first hearing.
2. In the Crown Court: At the Plea and Trial Preparation Hearing (PTPH).

Question 22

Can the issue of admissibility be raised later than these initial stages?

Answer 22

Yes, in theory, but it may result in delays and additional cos

Question 23

What might the court require from the defence when challenging a confession?

Answer 23

The court may require the defence to prepare a skeleton argument outlining the grounds for the challenge.

The prosecution must then file a skeleton argument in response.

Question 24

Who decides the admissibility of a confession during trial?

Answer 24

The trial judge determines the admissibility of a confession.

Question 25

When in the trial will the issue of admissibility be dealt with?

Answer 25

1. If the confession is central to the case (i.e., without it the prosecution cannot proceed): The issue is dealt with at the beginning of the trial, before the prosecution opens its case. a) If the judge rules in favour of the defence, the case will be dropped without calling other evidence. 2. If the confession is only part of the evidence: The issue can be dealt with at a later stage in the trial. a) In this case, prosecution counsel cannot mention the confession when opening the case to the jury.

Question 26

What is the procedure for dealing with disputed confessions

Answer 26

1. Matter dealt in absence of jury ( voir dire trial) ( trial within a trial) 2. The P call evidence first in voir dire, becuase the P MUST prove that the confession is not obtian breaching s.76(2) What evidnce called depends and then will call the police officer who did the interview 3. The defence will be able to cross-examine the witness 4. D then calls evidence and the D is often called with solcitor who present at the time 6. The P can cross-examine the witness 7. The D cant be asked whether the confession is true or not, dont matter if its true, if obtained breaching s.76(2) then its inadmissable regardless if its true 8. Conclusion of the evidnece the P and D give submission to court 9. Court then decides (DO RMBR IF THE JUDGE SAYS CONFESSION SHLD NOT BE ADDUCED, THEN THE P CANT REFER TO IT AGAIN IN TRIAL)

Question 27

Is the jury present when the court considers the admissibility of a disputed confession?

Answer 27

No. The matter is decided in the absence of the jury.

Question 28

What is the name of the process used to determine the admissibility of a confession?

Answer 28

A voir dire, also known as a trial within a trial.

Question 29

Who presents evidence first in a voir dire and why?

Answer 29

The prosecution goes first because it bears the burden of proving that the confession was not obtained in breach of s76(2) PACE.

Question 30

Who will the prosecution typically call as witnesses during a voir dire?

Answer 30

Usually, the interviewing police officer(s) and the custody sergeant.

Question 31

Can the defence cross-examine the prosecution witnesses during the voir dire?

Answer 31

Yes, the defence may cross-examine all prosecution witnesses.

Question 32

What happens after the prosecution’s evidence in the voir dire?

Answer 32

The defence can call its own evidence, which often includes: 1. The defendant, and 2. Possibly the solicitor who was present during the interview.

Question 33

Can the prosecution cross-examine defence witnesses during the voir dire?

Answer 33

Yes, the prosecution may cross-examine the defence witnesses.

Question 34

Can the defendant be asked whether the confession is true?

Answer 34

N0. The truth of the confession is irrelevant to admissibility. Under s76(2) PACE, if the confession was obtained by oppression or is unreliable, it is inadmissible regardless of whether it is true. RMBR IF ITS INADBMISSABLE IT DONT MATTER IF ITS TRUE OR NOT

Question 35

What happens at the end of the evidence in a voir dire?

Answer 35

Both prosecution and defence may make submissions to the judge.

Question 36

Q: Who ultimately decides on the admissibility of the confession?

Answer 36

The trial judge makes the decision.

Question 37

What happens if the judge rules that a confession is inadmissible?

Answer 37

The prosecution cannot refer to the confession again during the trial.

Question 38

Does ruling a confession inadmissible prevent the use of all evidence arising from it?

Answer 38

No. Under s76(4) PACE, the prosecution can use evidence discovered as a result of the inadmissible confession (e.g. drugs found based on the defendant’s directions). ex: Police told by D where find drugs during the interview, they find the drugs, court later say the confession is inadmissable, the P can still use the drugs as evidence, BUT CANT TELL THE JURY THAT THE DRUGS FOUND BECUZ THE D TOLD THE POLICE (RMBR!!)

Question 39

Can the prosecution tell the jury how that other evidence (like the drugs) was found? if in trial the judge find that when D confession of telling police police where to find the drugs was inadmissable

Answer 39

No. Under s76(5) PACE, the prosecution cannot say the evidence was found because of what the defendant told the police.

Question 40

What happens if the judge rules the confession is admissible?

Answer 40

1. The prosecution may introduce the confession normally at trial. 2. The defence can still challenge the credibility of the confession before the jury, even if it's admissible. ( by voir dire to pursuade the jury that the confession shld not be believed)

Question 41

Can the prosecution ask the defendant whether the confession is true during trial?

Answer 41

Yes, but only in the main trial (not the voir dire), because the issue now is guilt, not admissibility.

Question 42

Under what two grounds can a confession be ruled inadmissible under s76 PACE?

Answer 42

1. It was obtained by oppression. 2. It was obtained in a way that made it likely to be unreliable due to anything said or done.

Question 43

How is “oppression” defined in s76(8) PACE?

Answer 43

“Oppression” includes: 1. Torture, 2. Inhuman or degrading treatment, and 3. The use or threat of violence (whether or not it amounts to torture).

Question 44

What definition of “oppression” did the Court use in R v Fulling [1987]?

Answer 44

The exercise of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of subjects, inferiors etc., or the imposition of unreasonable or unjust burdens.”

Question 45

What kind of test is used to assess whether a confession is unreliable?

Answer 45

An objective test — would the circumstances and what was said or done likely render this or any similar confession unreliable?

Question 46

Is there overlap between the two grounds for exclusion under s76 (oppression and unreliability)?

Answer 46

Yes — oppressive conduct is likely to also render a confession unreliable, so the two limbs can overlap.

Question 47

What role do the PACE Codes of Practice play in confession admissibility?

Answer 47

Breaches of the PACE Codes (especially regarding detention and treatment) can undermine confession admissibility and support an exclusion application.

Question 48

Can refusal of access to a solicitor affect admissibility?

Answer 48

Yes — refusing to allow a suspect access to legal advice before or during interview may lead to exclusion.

Question 49

What about interviewing someone unfit to be interviewed?

Answer 49

Interviewing someone who is drunk, ill, or sleep-deprived may result in unreliable confessions.

Question 50

Is aggressive interviewing a ground for exclusion?

Answer 50

Yes — bullying or badgering tactics can amount to oppression or create unreliability.

Question 51

Can police lie to suspects about the evidence?

Answer 51

Giving misleading or false information (e.g. saying their fingerprints were found) may lead to unreliability.

Question 52

What if promises are made for confessions?

Answer 52

Offering bail or a reduced sentence in exchange for a confession may render it inadmissible.

Question 53

What if police fail to caution the suspect?

Answer 53

Failure to caution can undermine the admissibility of the confession.

Question 54

Can interviewing youths without an appropriate adult affect admissibility?

Answer 54

Yes — interviewing juveniles without an appropriate adult may breach the Codes and impact admissibility.

Question 55

Does failure to record the interview matter?

Answer 55

Yes — not recording an interview can lead to credibility issues and possible exclusion

Question 56

What about statements made before formal booking at the station? - is this admissable?

Answer 56

Yes can exclude the confession “Verbal” confessions made in the back of a police car or before formal arrest procedures are highly vulnerable to challenge.

Question 57

Can the truth of a confession be considered when determining its admissibility under s76(2) PACE? ( The admissability of the confession can be challenged if its true or not, but the court cant inquire to the truth or otherwise when consirdering admissability in voir dire)

Answer 57

No — the truth or falsity of a confession is irrelevant when assessing admissibility under s76(2). The court MUST not consider whether the confession is true during the voir dire. (RMBR)

Question 58

When, if at all, does the truth of a confession become relevant in court?

Answer 58

The truth becomes relevant during the main trial, if the judge has ruled the confession admissible and allows it to be heard by the jury. At that point, the jury will decide whether to believe it or not.

Question 59

What is a voir dire and how does it relate to confession admissibility?

Answer 59

A voir dire is a trial within a trial, held in the absence of the jury, where the judge decides on admissibility of evidence like confessions. The truth of the confession is not assessed in this process — only whether it was obtained lawfully. ( RMBR - WHAT MATTERS IS WHETHER IT WAS LAWFULLY OBTAINED CONFESSION NOT THE TRUTH)

Question 60

What type of evidence does s76 PACE deal with?

Answer 60

Section 76 deals exclusively with confession evidence.

Question 61

What is the scope of s78 PACE in relation to evidence?

Answer 61

Section 78 has a wider application than s76 — it allows the defence to apply to exclude any prosecution evidence, including but not limited to confessions. (MORE HELPFUL FOR THE DEFENCE BUT THIS IS MAY NOT MUST BE HEARD)

Question 62

When might the defence apply under both s76 and s78?

Answer 62

When seeking to exclude a confession, the defence will often make an application under s76(2) and alternatively under s78, so that if the confession isn't excluded under s76, the court can still consider exclusion under the fairness-based test in s78.

Question 63

What is the key test under s78 PACE?

Answer 63

Whether admitting the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. Test: would admitting it have an ADVERSE EFFECT TO THE FAIRNESS OF THE PROCEEDING

Question 64

What power does s78 PACE give the court regarding prosecution evidence?

Answer 64

The court may exclude any prosecution evidence if its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

Question 65

What must the court assess under s78?

Answer 65

The court MUST assess the effect of using the evidence on the fairness of the proceedings, considering all circumstances, including how the evidence was obtained.

Question 65

What factor is key in the court’s decision under s78?

Answer 65

Whether the evidence was unfairly or improperly obtained, e.g. via breach of PACE Codes, coercion, or procedural unfairness.

Question 66

Can s78 apply to all prosecution evidence or just confessions?

Answer 66

s78 applies to all prosecution evidence, including but not limited to confessions.

Question 67

What is the general application of s78 PACE?

Answer 67

Section 78 applies to any prosecution evidence, not just confessions. The only guidance for its operation comes from case law.

Question 68

Can the same grounds used to exclude a confession under s76 also apply to s78?

Answer 68

Yes. Most grounds under s76 (e.g. oppressive conduct, unreliable confessions) also provide grounds under s78.

Question 69

What is agent provocateur evidence and how does it relate to s78?

Answer 69

Agent provocateur (or entrapment) involves undercover police encouraging crime. If proper procedures under the Police Act 1997, RIPA 2000, or IPA 2016 are not followed, evidence may be excluded under s78 due to unfairness. Note: Entrapment is not a legal defence, but can justify exclusion of evidence under s78.

Question 70

Can evidence obtained from an unlawful search be excluded under s78?

Answer 70

Possibly. The unlawfulness alone isn’t enough. The defence must show that admitting the evidence would have an adverse effect on the fairness of the trial. SO WHERE THERE IS UNLAWFUL SEARCH NOT NECESSARLY SUCCESFUL S.78 THE D HAVE TO SHOW THE ADMISSION OF EVIDENCE OBATAINED BY THE POLICE WOULD HAVE AN ADVERSE EFFECT ON THE FAIRNESS OF THE PROCEEDINGS.

Question 71

Can surveillance evidence be challenged under s78?

Answer 71

Yes. Improper authorisation or breach of surveillance rules can lead to an application to exclude such evidence under s78.

Question 72

How does s78 apply to identification evidence?

Answer 72

A breach of Code D of PACE, which governs ID procedures, can support an application to exclude ID evidence under s78—but the breach must cause unfairness. Note: A breach alone is not enough; there must be resulting prejudice to the defendant.

Question 73

Is the list of examples under s78 exhaustive?

Answer 73

No. It is non-exhaustive. Other situations may justify exclusion of evidence under s78 if fairness is affected.

Question 74

What determines the procedure for an application to exclude evidence under s78?

Answer 74

The procedure depends on the issues to be resolved—especially whether there are factual disputes about the evidence.

Question 75

When are applications to exclude made in Crown Court trials?

Answer 75

They are always made in the absence of the jury to avoid prejudice.

Question 76

How are applications made in the magistrates’ court?

Answer 76

Applications are made to the magistrates hearing the trial, but increasingly some evidential applications are made pre-trial to a District Judge.

Question 77

What happens if there are factual differences between the parties in a Crown Court application?

Answer 77

The court can hold a voir dire (a trial within a trial), where both parties may call evidence relevant to admissibility.

Question 78

Who bears the burden of proof in s76 applications?

Answer 78

The prosecution bears the burden and must prove the confession was not obtained improperly beyond reasonable doubt.

Question 79

Is the burden of proof clear in s78 applications?

Answer 79

No. Section 78 does not specify where the burden lies. The burden position is less clear compared to s76.

Question 80

Rmbr that s.76 is MANDATORY BUT S.78 is MAY be heard