Unit 16 Confessions and Unlawfully Obtained Evidence Flashcards
Definition of a confession
includes 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.
I.e. includes an informal admission to a friend or colleague - most confessions however are made to a person in authority and such confessions are the most likely to be challenged.
‘words or otherwise’ - e.g. reenactment of crime at interview, thumbs up, etc
What is a mixed statement and is it a confession?
Mixed statement (part confession, part exculpation) = confession. E.g. admission of presence at scene of crime, but blame co-A for killing
Yes - it’s partially a confession
Can a retracted guilty plea be relied on as a confession?
In principle yes, but it may be excluded by the court under s. 78 PACE. Though it may then still be relied upon as a confession by a co-A, to whom s.78 doesn’t apply
Is a plea in mitigation (by counsel or the convicted person) a confession?
No!
General rule on confessions
PACE 1984, s.76: Admissible if:
- it is relevant to any issue in the proceedings; and
- it is not excluded
The rule of admissibility extends to the co-accused as well as the prosecution.
When must a confession be excluded under s. 76 PACE?
if:
(a) obtained by oppression or
(b) anything was said or done at time likely to render it unreliable
Can a confession made by someone other than A be held against him in evidence?
No
What are the rules regarding the requirement that it must have been A who made the confession?
- Where the only proof that the accused made the statement comes from the confession itself, it should not be admitted.
- The jury should be given a clear direction not to rely on a statement unless they are sure that it was the defendant who made the statement.
Under what circumstances does the prosecution have to prove the admissibility of the confession? To what standard do they have to prove that it is admissible?
The general rule is that they don’t have to prove it. But there are 2 important exceptions:
(a) D applies to exclude it under s.76 or
(b) court requires proof that it should not be excluded under s. 76 of its own motion
In these cases, the prosecution must prove that it should not be excluded (i.e. must prove ‘no oppression’ and that it is not unreliable) beyond reasonable doubt.
If the prosecution cannot prove this, then the court must exclude it - not discretionary
Definition of ‘oppression’
PACE 1984 s.76(8): ‘In this section ‘oppression’ includes
- torture, inhuman or degrading treatment, and
- the use or threat of violence (whether or not amounting to torture).’
From case law:
- ‘oppression’ must be given its ordinary meaning: i.e. “exercise of authority in a wrongful manner”, “imposition of unreasonable or unjust burdens”
- almost invariably involves a degree of impropriety on the part of the interrogator
Is ‘oppression’ defined widely?
No - Exclusion for oppression is likely to be reserved for rare cases where an accused has been subjected to misconduct of a deliberate and serious nature.
But ultimately it’s case/fact-dependent
What is the relevance of character and attributes of accused to the definition of ‘oppression’?
- The nature of oppression varies according to the character and attributes of the accused.
- An experienced professional criminal therefore might expect a vigorous interrogation.
- It might be oppressive to put a question to an accused who is known to be mentally ill so ‘skilfully and deliberately’ to induce a delusionary state.
- Right to take into account someone’s intelligence, knowledge and experience
What is the test for exclusion for unreliability?
- A hypothetical question: NOT whether this confession is unreliable, but whether any confession which the accused might make in consequence of what was said or done was likely to be rendered unreliable.
- Evidence as to this must relate to the period before, or at the time when, the confession is made: the judge must ‘stop the clock’ and consider the issue of reliability at that point in time.
What does the phrase ‘anything said or done’ in the test for inadmissibility for unreliability mean?
- it obliges the judge to consider everything said or done and not to confine the inquiry to a narrow analysis
- This is an indication that the confession may be inadmissible, notwithstanding that the police have not behaved improperly (but nb a confession that was given voluntarily - in the sense of nobody doing anything to procure it - cannot be unreliable)
Two examples:
- A disordered woman of low normal intelligence heard her lover confess to a murder. As this experience may have led her to make a false confession out of a child-like desire to protect her lover, her statement was excluded under s.76(2)
- In an extreme case, it was D’s solicitor who, by intervening in the interview in an apparent attempt to secure a confession, rendered the confession unreliable.
- Where the solicitor provides proper legal advice to the client, this will not normally be a basis for excluding under s.76(2)(b). - A promise by a shopkeeper not to involve the police gave rise to the inference that anything said in consequence was unreliable.
Could a confession volunteered without anything being said or done be excluded for unreliability?
No - e.g. where an appropriate adult was the ‘unwilling recipient of unsolicited confessions’ by an accused, and nothing was said either by the adult or anyone else that would render the confessions unreliable.
Can a confession be deemed unreliable solely because of things said or done by A (ie if the circumstances alleged to result in unreliability were brought on exclusively by A)?
No
e.g. a defendant could not rely on the fact that they were confessing in order to attempt to get bail, or if they were an addict and would say or do anything to gain release so as to feed their addiction
BUT a self-induced incapacity e.g. having taken drugs is clearly relevant to the issue of discretionary exclusion under PACE s.78
Does a breach of the PACE Codes automatically result in the exclusion (under s 76) of a confession obtained in consequence of the breach?
No, but such a breach can amount to smth ‘said or done’ for the purposes of excluding the confession for unreliability under s. 76
E.g.
(a) Interview not recorded until following day may deprive court of reliable record if D argues confession falsely induced
(b) Failure to caution and to maintain a proper interview record
(c) Questioning before allowing access to a solicitor
(d) Improper questioning after charge
(e) Unsuitable appropriate adult
Can a confession be excluded under s. 78?
Yes
What is the test under s. 78? What is the standard of proof for the test?
A must persuade the court that on balance of probabilities the evidence (i.e. confession in this case) would have “such adverse effect on fairness of the proceedings that court ought not to admit it”
Is the CoA likely to interfere with the court’s exercise of its discretion under s. 78 PACE?
No - will only do so if the exercise was perverse
Can a breach of the PACE Codes be relevant evidence for the exercise of the court’s discretion under s. 78?
Yes
Is the court likely to exclude a confession under s. 78 if there has been a breach of the PACE Codes?
Relatively likely, but not necessarily - always depends on the effect of these breaches on the fairness of the proceedings. The extent of unfairness must be significant and substantial.
If there are significant or substantial breaches of the provisions of the code, then prima facie the standards of fairness set by Parliament have not been met. It would seem to follow that this cannot help but have an adverse effect on the fairness of proceedings. This does not mean that in every case of significant or substantial breach the evidence will be excluded. The task of the court is to consider whether there would be such an effect that justice requires the evidence to be excluded.
What is the likely effect of a breach of the right to legal advice on the exercise of the court’s discretion under s. 78 in relation to a confession?
I.e. we’re basically talking about cases where A was denied access to a lawyer and then made a confession
- Right to legal advice is a ‘fundamental’ right
- Save for when compelling reasons may exceptionally justify denial of access to a lawyer, the prosecution cannot lead and rely upon evidence of anything said by the accused without the benefit of legal advice during questioning under detention at a police station.
- It is not necessary to apply quite such strict a principle to the questioning of a person not yet detained.
- The key questions are (i) whether there existed compelling reasons for the restriction of access, and (ii) whether, viewing the proceedings as a whole, the trial was fair.
- Where legal advice is waived, the waiver should be voluntary, informed and unequivocal
- One case: no obligation to exclude a confession because the interviews were properly conducted, and the only function of legal advice would have been to remind D of rights of which he was already well aware.
- Another case: failure to inform D, a foreigner, of his right to legal advice was particularly significant given his lack of familiarity with police procedures. His confession ought to have been excluded.
- Minor defects in the communication of right to legal advice that do not bear on the exercise of informed choice by the suspect cannot give rise to unfairness.
What is the likely effect of a breach of interview procedures on the exercise of the court’s discretion under s. 78 in relation to a confession?
- also tends to lead to the exclusion of evidence under s.78
- It is desirable that the provisions of Code C that are designed to ensure that interviews are fully recorded and the suspect afforded an opportunity to contest the record be ‘strictly complied with’, and that the courts would not be slow to exclude evidence obtained following ‘substantial breaches.’
- Other provisions which have been held capable of exclusion: questioning without caution, breach of right to have an appropriate adult present, breach of right of accused to know why they had been arrested and ‘at least in general terms the level of the offence in respect of which he is suspected’
- A common situation is failure of officers to appreciate that something is an interview and therefore going on to breach multiple parts of the Code