Topic 13- Confessions Flashcards
What is the definition of a confession?
Any statement wholly or partly adverse to the person who made it
What is the general rule on the admissibility of confessions as governed by PACE s76?
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
What are examples of how a confession can be made?
An informal admission to a friend
A statement made to a person in authority
Does a plea of guilty constitute as a confession?
Yes
If a guilty plea has been retracted, can it still be used in evidence?
Usually not, the court may decide that it should not be given in evidence because of the adverse effect on the fairness of proceedings
Can a confession be made without words?
Yes, for example, a nod of acceptance, or a thumbs-up
Can driving away from the scene of an accident at speed be constituted as a confession?
No, this will not be deemed as a confession
If a confession is partly adverse to the maker, what is this known as?
A mixed statement
If a confession is partly adverse, is this still a confession?
Yes
What is the test for whether a statement is adverse?
It depends on the issues in the case
What section of PACE governs the admissibility of a confession?
Section 76
What are the two circumstances where a confession made by an accused will not be admissible?
If it was obtained by oppression of the person who made it
OR
The circumstances render the confession unreliable
If a confession is alleged to have been made by oppression or is unreliable, what will the prosecution do?
The prosecution will have to prove beyond reasonable doubt that the confession was not obtained as mentioned
What is the definition of oppression to obtain a confession?
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
Can a degree of impropriety in questioning exclude a confession?
Yes, if the circumstances allow
Does the nature of the oppression vary according to the character of the accused?
Yes
Eg, an experienced professional criminal might expect a more vigorous interrogation
But a man of good character might not
What is the question for the court to consider whether a confession is unreliable?
Is what happened likely in the circumstances to induce an unreliable confession?
It does not matter if the actual confession was reliable
What must the court consider when determining whether a confession is unreliable?
Everything said or done, and the circumstances, that may make the confession unreliable
Something must have happened for the confession to be unreliable
Can a confession be considered unreliable by reason only of something said or done by the accused?
No, someone else must have done/said something
What are examples of something said or done that may make a confession unreliable?
Breach by the police of PACE, or Code for DTQP
Will a breach of PACE automatically lead to the exclusion of a confession?
No, must look at all the circumstances
Can the Court of Appeal interfere with the trial judge’s discretion to admit evidence under s78?
No, unless satisfied that the decision was perverse
What is the key question for excluding evidence under s78 PACE?
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
Can the prosecution rely on a confession by the accused without the benefit of legal advice during questioning?
No, unless it is waived
Can the prosecution rely on a confession by the accused even if they have breached provisions for questioning procedure?
No
Eg, not under caution, etc
What breaches of PACE may not trigger exclusion of a confession?
Eg, failure of police to show the suspect a note of a conversation which the suspect had asked to be kept off the record
What is a voir dire?
This is a trial within a trial
It is used to determine the admissibility of evidence
What are the three stages for the procedure in challenging the admissibility of a confession?
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
What is the purpose of a voir dire?
It is a trial within a trial to determine the admissibility of a statement
What is the procedure where an objection is taken to the admission of a confession?
A voir dire is used
Should a voir dire always be held to determine the admissibility of a confession?
No, it doesn’t always need to be held
Even if a confession is determine to be inadmissible, can evidence be taken from the confession?
Yes
For example, any facts discovered, or where it shows that the accused speaks or writes in a particular way
What can an inadmissible confession be used as in evidence?
It can be used to prove the discovery of facts, or to show speech, writing or expression
Where evidence has been obtained illegally, what will the court usually do?
They will stay the proceedings
If the court does not stay the proceedings after finding that evidence has been obtained illegally, what happens?
The evidence will be admissible as a matter of law, even if obtained unlawfully
What are the six ways in which evidence obtained “unlawfully” can be still admissible?
Theft
Unlawful search of premises
Unlawful search of persons
Use of agents provocateurs
Eavesdropping
Invasion of privacy
Where is the most important discretionary power to exclude prosecution evidence held?
PACE 1984 s78
What are the two factors to consider when deciding whether to exclude evidence at common law?
Is it likely to have a prejudicial effect out of proportion to its probative value?
Was the evidence obtained by improper or unfair means?
Does s78 PACE extend to excluding any evidence?
Yes
What does s78 PACE specifically apply to?
Any prosecution evidence they propose to rely on
What matters may be determined in a voir dire?
Admissibility of a confession
Competence of a witness
Is there a voir dire in Magistrates Court?
No, as the magistrates are the tribunals of both fact and law
What stage in a trial will the magistrates rule upon a question of admissibility?
This is a matter for their discretion
When the defence object to the admissibility of a confession, what must the prosecution prove?
They must prove beyond reasonable doubt that the evidence was not obtained through oppression or is unreliable
