Unit 16 Confessions and Unlawfully Obtained Evidence

Question 1

Definition of a confession

Answer 1

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

Question 2

What is a mixed statement and is it a confession?

Answer 2

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

Question 3

Can a retracted guilty plea be relied on as a confession?

Answer 3

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

Question 4

Is a plea in mitigation (by counsel or the convicted person) a confession?

Answer 4

No!

Question 5

General rule on confessions

Answer 5

PACE 1984, s.76: Admissible if:

1. it is relevant to any issue in the proceedings; and
2. it is not excluded

The rule of admissibility extends to the co-accused as well as the prosecution.

Question 6

When must a confession be excluded under s. 76 PACE?

Answer 6

if:

(a) obtained by oppression or

(b) anything was said or done at time likely to render it unreliable

Question 7

Can a confession made by someone other than A be held against him in evidence?

Answer 7

No

Question 8

What are the rules regarding the requirement that it must have been A who made the confession?

Answer 8

• 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.

Question 9

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?

Answer 9

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

Question 10

Definition of ‘oppression’

Answer 10

PACE 1984 s.76(8): ‘In this section ‘oppression’ includes

1. torture, inhuman or degrading treatment, and
2. 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

Question 11

Is ‘oppression’ defined widely?

Answer 11

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

Question 12

What is the relevance of character and attributes of accused to the definition of ‘oppression’?

Answer 12

• 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

Question 13

What is the test for exclusion for unreliability?

Answer 13

• 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.

Question 14

What does the phrase ‘anything said or done’ in the test for inadmissibility for unreliability mean?

Answer 14

• 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:

1. 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)
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.

Question 15

Could a confession volunteered without anything being said or done be excluded for unreliability?

Answer 15

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.

Question 16

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)?

Answer 16

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

Question 17

Does a breach of the PACE Codes automatically result in the exclusion (under s 76) of a confession obtained in consequence of the breach?

Answer 17

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

Question 18

Can a confession be excluded under s. 78?

Answer 18

Yes

Question 19

What is the test under s. 78? What is the standard of proof for the test?

Answer 19

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”

Question 20

Is the CoA likely to interfere with the court’s exercise of its discretion under s. 78 PACE?

Answer 20

No - will only do so if the exercise was perverse

Question 21

Can a breach of the PACE Codes be relevant evidence for the exercise of the court’s discretion under s. 78?

Answer 21

Yes

Question 22

Is the court likely to exclude a confession under s. 78 if there has been a breach of the PACE Codes?

Answer 22

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.

Question 23

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

Answer 23

• 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.

Question 24

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?

Answer 24

• 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

Question 25

What is the likely effect of bad faith on the part of the police on the exercise of the court’s discretion under s. 78 in relation to a confession?

Answer 25

• the presence of bad faith where the police have acted in breach of the Act or Codes is a factor making it more likely evidence will be excluded.
• Although bad faith may make substantial or significant that which might not otherwise be so, the contrary does not follow. Breaches which are in themselves significant and substantial are not rendered otherwise by the good faith of the officers concerned.’

Question 26

What is the procedure where the admissibility of a confession is challenged under s 76?

Answer 26

(1) D counsel notifies P that an objection to admissibility is raised (N.B. it is also possible for the court to challenge it of its own motion under s. 76)

(2) P refrains from mentioning statement in opening to jury.

(3) At appropriate time, judge directs jury to withdraw and, depending on whether the objection is raised under s. 76 or s. 78, conducts a trial on the voir dire to decide admissibility

A can give evidence should he wish to testify

Question 27

If the admissibility of a confession is challenged under s. 76 what must happen?

Answer 27

Court must immediately conduct a voir dire if admissibility of a confession is objected before P finishes opening case

This applies to both Mags and CC. Mags have to put objectionable material ‘out of their mind’ before voir dire

Question 28

At what point must D’s counsel raise an objection to a confession under s. 78?

Answer 28

Before the confession is given in evidence

Question 29

Is a voir dire always necessary for challenges to a confession under s. 78?

What is the approach to voir dires for challenges under s. 78 before the Mags?

Answer 29

No, but in many cases it is convenient to investigate the submission in this way, particularly where the evidence is also challenged under s.76

Before the Mags: in most cases it is better for the whole of the prosecution case, including the disputed evidence, to be heard first (i.e. no voir dire). A voir dire may be appropriate if the issues are limited, but not if it is likely to be protracted and to raise issues which will need to be re-examined in the trial itself.- Where there is a s.78 challenge to evidence of statements made by an accused, it is normally desirable in the interests of justice for the court to hear the evidence and to have canvassed in questioning any circumstances which would render admission unfair. Where the justices resolve to exclude it, after seeking the views of the parties, they should then consider whether the substantive hearing should be conducted by a different bench.

Question 30

If a confession is excluded under s.76, can it become admissible by any hearsay exceptions?

Answer 30

No!

Question 31

Can a confession be only partially excluded?

Answer 31

Yes - both under s. 78 and s. 76

Question 32

If evidence was obtained from a confession that was found to be inadmissible, can that evidence still be adduced? If so, what are the rules in relation to this?

Answer 32

Yes

Whole/part exclusion under s. 76 of a confession does not affect the admissibility in evidence of:

(a) Facts discovered as a result of confession
-> E.g. police find stolen goods due to inadmissible confession – still allowed to prove discovery of stolen property

or

(b) Relevance of showing that A speaks, writes or expresses himself in certain way
-> E.g. misspelling / unusual speech impediment. BUT only so much evidence as necessary to show relevant feature

These rules are found in s. 76(4) - there are no statutory rules where the confession is excluded under s. 78, but the common law rules suggest that evidence discovered by virtue of such a confession is admissible.

Question 33

Where evidence was obtained illegally, improperly or unfairly, what is the general rule regarding its admissibility (e.g. obtained by theft, unlawful search, eavesdropping)?

Answer 33

It is admissible (provided it is relevant)

The right thing to do for the defence is to request its exclusion under s. 78.

Question 34

What are the 5 main powers of exclusion of evidence (in the syllabus as a whole)?

Answer 34

(1) PACE s.78 – general application

(2) PACE s.76 – confessions

(3) Common law provisions
- In practice, largely superseded
- test: negative effect outweighs probative value
- Based on duty to ensure a fair trial
- Can be used to exclude confession after admitted if it shouldn’t have been

(4) CJA 2003, s. 101(3) – bad character evidence ‘unfair’

(5) CJA 2003, s. 126 – hearsay exclusion (section number is not on the syllabus, but the principle is - ie exclusion of superfluous or unreliable hearsay evidence/‘undue waste of time’)

Question 35

On what basis can evidence obtained by torture or inhuman or degrading treatment be excluded?

Answer 35

S. 76 if the evidence in question is a confession

At common law, there is a broader general principle that evidence obtained by torture is inadmissible. - Torture was not defined, but a definition adopted by Parliament in the CJA 1988, namely the infliction of severe pain or suffering on someone by a public official in the performance or purported performance of official duties, is preferred
- Incriminating real evidence recovered as a direct result of torture should never be admitted, but evidence secured as an indirect result of statements made and obtained by inhuman treatment may be admitted if it is only an accessory in securing a conviction and its admission does not compromise defence rights.

Question 36

What are some examples of matters which may fall to be determined in a hearing on the voir dire in the Crown Court?

Answer 36

(a) the competence of a witness

(b) the admissibility of a confession or some other variety of admissible hearsay

(c) the admissibility of a recording

(d) the admissibility of a statement contained in a document produced by a computer

(e) the admissibility of a plea of guilty against an accused who subsequently changes their plea to NG

N.B. there are no comparable general rules for summary trials

Question 37

What is the problem with voir dires in the Mags and how is it overcome, if at all?

Answer 37

• The procedure to be followed where the defence object, during the course of a summary trial, to proposed prosecution evidence, raises the difficulty that the magistrates are the judges of both fact and law.
• The problem is mitigated to some extent by the availability of pre-trial rulings but these will not avail where issues of admissibility are raised for the first time during the course of the trial itself.
• The stage of the trial at which the magistrates consider admissibility is a matter for their discretion.
• Delaying the determination of admissibility of a confession until after the conclusion of the prosecution evidence may be unfair to the defence, in that the accused will not be able to give evidence about the alleged irregularities in the obtaining of the evidence unless he or she testifies and thus becomes exposed to cross-exam about the general issues. In taking the decision what evidence to call, the defence advocate ought also to know whether crucial evidence is to be part of the case against the accused
• It is impossible to lay down any general rule; a preliminary point e.g. the admissibility of a document can be decided straight away. Other points may require a decision at a later stage, possibly after further argument.

Question 38

Describe the common law power to exclude evidence.

Answer 38

1. It is based upon the duty of the court to ensure a fair trial
2. It seeks to exclude evidence where the prejudicial effect of the evidence outweighs the probative value.
3. In practice the common law discretion has largely been superseded because s. 78 is wider in scope.
4. Does NOT apply to all kinds of evidence: it applies to admissions, confessions and any evidence obtained unfairly, illegally or improperly after commission of the offence by improper or unfair means and which might operate unfairly against the defendant.

Question 39

Would an application under s. 76 be appropriate if A denies that he ever made the confession?

Answer 39

No - s. 76 is about excluding confessions that it is agreed took place. Therefore, if your argument is ‘I never said that’ s. 76 is not appropriate - but excluding whatever evidence is sought to be adduced may still be possible under s. 78.