Topic 13- Confessions

Question 1

What is the definition of a confession?

Answer 1

Any statement wholly or partly adverse to the person who made it

Question 2

What is the general rule on the admissibility of confessions as governed by PACE s76?

Answer 2

It will be admissible insofar as it is relevant to any issue in the proceedings
AND
It is not excluded on the grounds of oppression or unreliability

Question 3

What are examples of how a confession can be made?

Answer 3

An informal admission to a friend

A statement made to a person in authority

Question 4

Does a plea of guilty constitute as a confession?

Answer 4

Yes

Question 5

If a guilty plea has been retracted, can it still be used in evidence?

Answer 5

Usually not, the court may decide that it should not be given in evidence because of the adverse effect on the fairness of proceedings

Question 6

Can a confession be made without words?

Answer 6

Yes, for example, a nod of acceptance, or a thumbs-up

Question 7

Can driving away from the scene of an accident at speed be constituted as a confession?

Answer 7

No, this will not be deemed as a confession

Question 8

If a confession is partly adverse to the maker, what is this known as?

Answer 8

A mixed statement

Question 9

If a confession is partly adverse, is this still a confession?

Answer 9

Yes

Question 10

What is the test for whether a statement is adverse?

Answer 10

It depends on the issues in the case

Question 11

What section of PACE governs the admissibility of a confession?

Answer 11

Section 76

Question 12

What are the two circumstances where a confession made by an accused will not be admissible?

Answer 12

If it was obtained by oppression of the person who made it
OR
The circumstances render the confession unreliable

Question 13

If a confession is alleged to have been made by oppression or is unreliable, what will the prosecution do?

Answer 13

The prosecution will have to prove beyond reasonable doubt that the confession was not obtained as mentioned

Question 14

What is the definition of oppression to obtain a confession?

Answer 14

Torture, inhuman or degrading treatment, or the use or threat of violence

Can also be any impropriety on the part of the interrogator- eg, unduly hostile questioning

Question 15

Can a degree of impropriety in questioning exclude a confession?

Answer 15

Yes, if the circumstances allow

Question 16

Does the nature of the oppression vary according to the character of the accused?

Answer 16

Yes
Eg, an experienced professional criminal might expect a more vigorous interrogation

But a man of good character might not

Question 17

What is the question for the court to consider whether a confession is unreliable?

Answer 17

Is what happened likely in the circumstances to induce an unreliable confession?

It does not matter if the actual confession was reliable

Question 18

What must the court consider when determining whether a confession is unreliable?

Answer 18

Everything said or done, and the circumstances, that may make the confession unreliable

Something must have happened for the confession to be unreliable

Question 19

Can a confession be considered unreliable by reason only of something said or done by the accused?

Answer 19

No, someone else must have done/said something

Question 20

What are examples of something said or done that may make a confession unreliable?

Answer 20

Breach by the police of PACE, or Code for DTQP

Question 21

Will a breach of PACE automatically lead to the exclusion of a confession?

Answer 21

No, must look at all the circumstances

Question 22

Can the Court of Appeal interfere with the trial judge’s discretion to admit evidence under s78?

Answer 22

No, unless satisfied that the decision was perverse

Question 23

What is the key question for excluding evidence under s78 PACE?

Answer 23

Whether the admission of the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it

Question 24

Can the prosecution rely on a confession by the accused without the benefit of legal advice during questioning?

Answer 24

No, unless it is waived

Question 25

Can the prosecution rely on a confession by the accused even if they have breached provisions for questioning procedure?

Answer 25

No Eg, not under caution, etc

Question 26

What breaches of PACE may not trigger exclusion of a confession?

Answer 26

Eg, failure of police to show the suspect a note of a conversation which the suspect had asked to be kept off the record

Question 27

What is a voir dire?

Answer 27

This is a trial within a trial It is used to determine the admissibility of evidence

Question 28

What are the three stages for the procedure in challenging the admissibility of a confession?

Answer 28

Defence notifies the prosecution that an objection to admissibility is raised Prosecution would then refrain from mentioning the statement in front of the jury At an appropriate time, the judge can conduct a voir dire

Question 29

What is the purpose of a voir dire?

Answer 29

It is a trial within a trial to determine the admissibility of a statement

Question 30

What is the procedure where an objection is taken to the admission of a confession?

Answer 30

A voir dire is used

Question 31

Should a voir dire always be held to determine the admissibility of a confession?

Answer 31

No, it doesn't always need to be held

Question 32

Even if a confession is determine to be inadmissible, can evidence be taken from the confession?

Answer 32

Yes For example, any facts discovered, or where it shows that the accused speaks or writes in a particular way

Question 33

What can an inadmissible confession be used as in evidence?

Answer 33

It can be used to prove the discovery of facts, or to show speech, writing or expression

Question 34

Where evidence has been obtained illegally, what will the court usually do?

Answer 34

They will stay the proceedings

Question 35

If the court does not stay the proceedings after finding that evidence has been obtained illegally, what happens?

Answer 35

The evidence will be admissible as a matter of law, even if obtained unlawfully

Question 36

What are the six ways in which evidence obtained "unlawfully" can be still admissible?

Answer 36

Theft Unlawful search of premises Unlawful search of persons Use of agents provocateurs Eavesdropping Invasion of privacy

Question 37

Where is the most important discretionary power to exclude prosecution evidence held?

Answer 37

PACE 1984 s78

Question 38

What are the two factors to consider when deciding whether to exclude evidence at common law?

Answer 38

Is it likely to have a prejudicial effect out of proportion to its probative value? Was the evidence obtained by improper or unfair means?

Question 39

Does s78 PACE extend to excluding any evidence?

Answer 39

Yes

Question 40

What does s78 PACE specifically apply to?

Answer 40

Any prosecution evidence they propose to rely on

Question 41

What matters may be determined in a voir dire?

Answer 41

Admissibility of a confession Competence of a witness

Question 42

Is there a voir dire in Magistrates Court?

Answer 42

No, as the magistrates are the tribunals of both fact and law

Question 43

What stage in a trial will the magistrates rule upon a question of admissibility?

Answer 43

This is a matter for their discretion

Question 44

When the defence object to the admissibility of a confession, what must the prosecution prove?

Answer 44

They must prove beyond reasonable doubt that the evidence was not obtained through oppression or is unreliable

Question 45

If the police has refused an accused's access to a solicitor, can a confession made by the accused still be lawful?

Answer 45

No, it will be in breach of PACE and therefore excluded

Question 46

What is a mixed statement?

Answer 46

A statement that is wholly or partially adverse to the maker Eg, if they say they had an argument which led to pushing, but they had not intended to hurt them

Question 47

What is the difference between using s76 and s78 PACE?

Answer 47

s76 relates ONLY to unreliability and oppression use in CONFESSIONS s78 relates to all evidence that can be excluded

Question 48

If the Court finds a confession has been obtained through oppression, MUST the Court find it inadmissible?

Answer 48

No, they can still admit it The prosecution must prove beyond reasonable doubt that it was obtained through oppression

Question 49

Are mixed statements admissible as a confession?

Answer 49

Yes

Question 50

What specific section of PACE does oppression for a confession relate to?

Answer 50

s76(2)(a)

Question 51

What specific section of PACE does unreliability for a confession relate to?

Answer 51

s76(2)(b)

Question 52

Is answering "maybe" to a question of whether an accused committed the crime an admission?

Answer 52

It does amount to a confession as it is partly adverse to the accused

Question 53

Is a guilty plea admissible as a confession (if the accused changes to not-guilty?)

Answer 53

Yes, but it can be excluded under s78 PACE