Unit 6 - PACE - Confessions Flashcards
The definition of confession
Defined in s82(1) PACE
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.
What is the general rule about the admissibility of confessions?
Confessions are admissible.
In what circumstances does the general admissibility of confessions apply?
( S76(1) )
a. IS admissible insofar as it is RELEVANT to any issue in the proceedings; AND
b. IS NOT excluded on the grounds of
i. Oppression; or
ii. in consequence of anything said/done conducive to unreliability.
Who does the general rule of of admissibility extends to operate in favour of?
Prosecution + co-accused
What does a confession include?
- Section 82(1) makes it clear that ‘confession’ covers statements such as an
- an informal admission to a friend or colleague,
- is not limited to statements made to a person in authority, such as a police or customs officer.
It should follow from the definition of ‘confession’ in s. 82(1), and from the provision in s. 76(1) (see F18.8) that only a confession made ‘by’ an accused may be given in evidence ‘against him’,
that where the only proof that the accused made the statement comes from the confession itself it should not be admitted.
Ward, CA: where a passenger in a car gave W’s personal details to a police officer when asked for his own, the statement was
admissible as a ‘confession’ by W, who denied being the passenger. It is submitted that it was not a confession ‘by’ W unless the identity of the maker was shown to be W, which was the very point in dispute.
Court considered that a jury should be given a ‘clear direction’ not to rely on a statement unless they were sure from its contents and
surrounding evidence that it was the D giving an accurate identification. There is still an element of circularity in using the content to identify the maker, and the problem might be circumvented by treating the statement simply as a form of hearsay that might be admitted in the interests of justice under s114 CJA.
o The result of a literal application of the definition was (in Mawdesley) that a statement disclosing the identity of a driver was admissible as a confession if it could be inferred that the accused had written it, even
though it was unsigned.
A plea of guilty constitutes a confession for the purposes of the PACE 1984, s. 82(1).
Where such a plea has been retracted =
the court may decide that it should not be given in evidence by the prosecution because of the adverse effect on the fairness of the proceedings, invoking s. 78
A retracted plea of guilty may also, where relevant, be relied upon as a confession by a co-accused, can the court apply its power of discretionary exclusion under s. 78?
NO!
the court’s power of discretionary exclusion under s. 78 does not apply IN THIS SITUATION
What about if the accused made an admission in other proceedings?
- constitute a confession for the purposes of the 1984 Act, and could be relied upon provided, as is likely, that it complies with the provisions of s. 76(2) and (which may be more doubtful) that it is not excluded under s. 78. Such evidence would not have been admitted at common law
Can a confession be made through a plea in mitigation made by counsel on behalf of a client ?
- A plea in mitigation made by counsel on behalf of a client who has been convicted following a plea of ‘not guilty’ should not be understood as a confession by the convicted person through counsel.
S82(1): expression ‘whether made in words or otherwise’
- suggests confession may, as well as written or oral form, include conduct such as a nod of acceptance of an accusation; or a thumbs up sign which may be regarded as a ‘statement’ in sign language.
Li Shu-Ling v The Queen, PC: a filmed re-enactment of the crime D was charged with, with D taking part in the demonstration and giving a running commentary
- the re-enactment was to be regarded as a confession under s. 82(1)
So re-enactments or visual demonstrations (amounting to ‘confessions’) have same conditions of admissibility as for oral written confessionsts or visual demonstrations (amounting to ‘confessions’) have same conditions of admissibility as for oral written confessions
Conduct which is not intended to convey guilt, but which may be interpreted as doing so
= NOT a statement = not a confession
- eg driving away at speed from the scene of accident is NOT a confession to which PACE applies (though evidence of such conduct
would be relevant and admissible)
A confession may be ‘wholly or partly adverse’ to the maker, so can be a so called ‘mixed statement’
which is part confession and part exculpation, is a confession for the purposes of the PACE 1984
Whether words amount to at least a partial confession is a question of fact, separate and distinct from the question whether the words in question were spoken at al
CA: not everything stated at the time of a partial admission is necessarily part of a ‘confession’.
Sliogeris: a statement made by co-accused A, in which he admitted his presence at the scene of a murder but blamed co-accused B for the killing, was not admissible under s76A
(application to exclude by co-accused C was successful, whose defence was that B alone committed the crime).
The admission of presence, though a partial confession by A, was not of itself relevant to C’s defence, while the allegation that B was
guilty was not part of the confession.
[[though the statement was admitted under s114 CJA 2003 interests of justice exception]]
Wholly exculpatory statements clearly do not fall within the definition of a confession
(eg “It was nothing to do with me”)
Admissibility and exclusion of confessions
Police and Criminal Evidence Act 1984, s. 76
(1) In any proceedings a confession made by an accused person may be given in evidence against him insofar as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.
(2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained—
* (a) by oppression of the person who made it; or
* (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof,
* the court shall not allow the confession to be given in evidence against him except insofar as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.
(3) In any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, the court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in subsection (2) above.
S76 - there are TWO main ways under S76 to challenge a confession:
- S76(2)(a) “Oppression”; OR
- S76(2)(b) “anything said or done which was likely in the circumstances existing at the time to render unreliable any confession which might be made by him in consequence thereof”
The prosecution do not have to prove the admissibility of a confession upon which they rely unless either
(a) the defence ‘represents’ that it is inadmissible under s. 76(2), or
(b) the court of its own motion requires proof of admissibility under s. 76(3).
(a) the defence ‘represents’ that it is inadmissible under s. 76(2), or
Re what is a “representation”: includes a statement by responsible counsel, on the basis of documents or proofs of evidence in his possession at the time of speaking, that the confession was/may have been obtained in breach of s76.
Prosecution to prove the admissibility of a confession upon which they rely: to which standard
beyond reasonable doubt
What if it is challenged under s76 and the prosecution cannot prove admissibility beyond reasonable doubt?
The confession must be excluded
Does the court have any discretion when it is challenged under s76 and the prosecution cannot prove admissibility beyond reasonable doubt?
the court has no discretion in the matter
Beeres v Cps = it was said that a court should be particularly vigilant to scrutinise a confession that is the sole evidence relied upon by the prosecution
A confession which is inadmissible in crim proceedings under s76, should not be used as the basis for a formal caution
S76 is NOT intended as a mechanism for regulating the admissibility of a confession made by one co-accused as evidence for another:
That is covered by s76A Pace, regulation of admission of the confession of a co-accused as defence evidence.
S76 - there are TWO main ways under S76 to challenge a confession:
(1) Oppression includes:
torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture).
- Reflects wording in Art 3 ECHR (also prohibits torture and IDT).
- Reference may be made to case law under Art 3.
- Reference to ‘torture’ may be interpreted in light of offence of torture in s134 CJA 1988
‘oppression’ should be given ordinary/natural meaning of language dictionary meaning (R v Fulling, CA)
- the Act does not follow the wording of earlier rules/decisions: ‘oppression’ should be interpreted by ascertaining natural meaning of language, uninfluenced by considerations from previous state of the law.
- ‘the OED 3rd definition of Oppression: “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”
o …….”there is not a word in our language which expresses more detestable wickedness than oppression.
Oppression almost inevitably involves some impropriety on the part of the interrogator (Fulling (1987) / Emmerson (1991) )
(1) But it does not follow that all impropriety necessarily involves oppression (not all wrongful acts, including breaches of Codes, could be termed oppressive).
(2) Police officer raising voice and using bad language in interview is not oppressive; though unduly hostile questioning may be oppressive; is a question of degree.
(3) Where accused had been ‘bullied and hectored’ in interview: CA: short of physical violence, it was hard to conceive of a more hostile and intimidating approach by officers to a suspect. Interview was oppressive
Where there is impropriety which falls short of ‘oppression’
- such impropriety might support an argument for exclusion of confession under
s76(2)(b) or s78.
Eg, access to legal advice improperly denied = could be oppressive, but more likely a s78 application is appropriate.
Exclusion for ‘oppression’ is reserved for rare cases where an an accused has been subject to misconduct of a:
a) Deliberate; &
b) Serious Nature: and where the court is anxious to mark its disquiet at the methods employed.
At common law it was held that the nature of oppression varied according to the character and attributes of the accused.
Thus, an ‘experienced professional criminal’ might expect a vigorous interrogation
O’Connor LJ said (at p. 56) that the trial judge ‘was entitled to consider the type of men he was dealing with’, all ofwhom were experienced criminals.
O’Connor LJ contrasted the case with that of Hudson (1980), in which a middle-aged man of previous good character had been subjected to a lengthy, and in certain respects unlawful, interrogation, which was subsequently held to have been oppressive.
At the other end of the spectrum, in Miller [1986] Watkins LJ said that it might be oppressive to put questions to an accused who is known to be mentally ill so as ‘skilfully and deliberately’ to induce a delusionary state.
Police witnesses might be XX-ed as to
whether they were part of a ‘culture’ of pressurising witnesses improperly.
Twitchell, CA: considered that officers alleged to have tortured D could have been XXed to potentially devastating effect had the
subsequent findings of a court regarding a similar torture by the same officers on another man been available for use in XX
If judge satisfied beyond reasonable doubt that the confession was not
obtained by oppression (and is thus admissible), defence can still:
- during the trial, seek to discredit the same evidence by XX and making reference to it in closing speech (i.e. that it was obtained by oppression and thus unreliable)
S76 - there are TWO main ways under S76 to challenge a confession:
(2) Exclusion for Unreliability (s76(2)(b)
conviction should be excluded not only on basis of obtained by threat/inducement (now ‘anything said or done’). But ONLY if circumstances were such that any resulting
confession would be likely unreliable.
S76(2)(b):
(a) where it is represented to court that
(b) the confession was or may have been obtained in consequence of anything said or done
(c) which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof
(d) the court shall not allow the confession to be given in evidence against him
(e) except insofar as the prosecution proves to court beyond reasonable doubt that the confession (notwithstanding that it may be
true) was not obtained as aforesaid.
S76(2)(b):
requires the trial judge to consider a hypothetical question: not whether this confession is unreliable
HOW TO APPROACH S76(2)(B) cases, CA, R v Barry: Where D alleges that confession was unreliable, approach is:
a) First step: identify the thing said or done, which requires the trial judge to take into account everything said and done by the police.
b) Second step: ask whether what was said and done was likely, in the circumstances, to render unreliable a confession made in
consequence. The test is objective, taking into account all the circumstances.
c) Last step: ask whether the prosecution has proved beyond reasonable doubt that the confession was not obtained in consequence
of the thing said and done = a question of fact to be approached in a common sense way
HOW TO APPROACH S76(2)(B) cases, CA, R v Barry: Where D alleges that confession was unreliable, approach is:
Step 1, Identify the thing said or done
- Judge must consider everything said or done (usually by the police), and not confine himself to a narrow analysis analogous to offer and acceptance in contract law
HOW TO APPROACH S76(2)(B) cases, CA, R v Barry: Where D alleges that confession was unreliable, approach is:
Step 1, Identify the thing said or done
Doses not necessarily require impropriety on behalf of the police to exclude confession for unreliability:
- Judge must consider ‘anything said or done’ and all the surrounding circumstances so a confession may be inadmissible notwithstanding that the police have not behaved improperly.
Eg Harvey: a psychopathically disordered woman of low normal intelligence heard her lover confess to a murder; this may have led to her make a false confession out of a child-like desire to protect her lover; her statement was excluded
HOW TO APPROACH S76(2)(B) cases, CA, R v Barry: Where D alleges that confession was unreliable, approach is:
Step 1, Identify the thing said or done
It has been held that a confession cannot be rendered inadmissible under the PACE 1984, s. 76(2)(b), by reason only of something said or done by the accused
The thing said/done must not simply be something from the suspect himself, but
must be from something external to the person himself:
Need a causal link between what was said/done and the subsequent
confession;
SO the thing said/done must be:
1. external to the person making the confession; and
2. likely to have some effect on him (Casual link).
Eg 1) a suspect who makes an admission because he considers this is likely to get him bail, when he has not been induced into believing this, cannot rely on s76(2)(b; OR
o Eg 2) A heroin addict who would have said anything to gain his release to feed his addiction that is something said/done only by the accused himself, wouldn’t give rise to an exclusion under s76(2)(b).
o Eg 3) Court might consider that accused has taken cocaine before confession as bearing on admissibility, but only as part of one of the
‘circumstances’ referred to in s76(2)(b).
HOW TO APPROACH S76(2)(B) cases, CA, R v Barry: Where D alleges that confession was unreliable, approach is:
Step 1, Identify the thing said or done
Often, the defence will be submitting that what was said/done was itself a breach of Pace Code C by the police
examples of such
Code C provisions re detention and questioning, eg right not to be
held incommunicado;
o right to legal advice;
o right to be cautioned prior to being questioned.
o And provisions re right to appropriate rest at the police station;
o Right for juvenile/mentally disordered/mentally vulnerable to an
appropriate adult.
o ‘Verballing provisions’: including requirements to make a record
of any interview and to allow a suspect opportunity to read the
record of the interview and sign it as correct or to indicate the
respects in which he considered it inaccurate.
o Code C designed to ensure that interviews are fully recorded
Such a breach will not lead to automatic exclusion of a confession obtained in consequence
HOW TO APPROACH S76(2)(B) cases, CA, R v Barry: Where D alleges that confession was unreliable, approach is:
Step 1, Identify the thing said or done
Often, the defence will be submitting that what was said/done was itself a breach of Pace Code C by the police
Examples of excluded of confessions on this ground:
Eg, Delaney: breach of Code D by not recording the interview until the following day = breach was significant; confession excluded.
Eg allowing questioning before access to a solicitor;
= Improper questioning after charge resulting in ambiguous and potentially unreliable answer
Where juvenile’s estranged father was insisted on by the police as the appropriate adult;
Appropriate adult who had low IQ and
incapable of appreciating gravity of situation;
Failure to give guidance to an appropriate adult;
Suspect of low IQ interviewed 9 times during a lengthy period of detention;
access to legal advice denied;
no independent person present at interview.
Can the conduct of the police be amount BOTH to oppression (s76(2)(a)) AND ‘anything said or done’ (s76(2)(b)?
YES
Often, the conduct of police/investigator may amount BOTH to oppression (s76(2)(a)) AND ‘anything said or done’ (s76(2)(b):
since the provisions are disjunctive, either or both can be used to challenge a confession depending on circumstances
b) Second step: ask whether what was said and done was likely, in the circumstances, to render unreliable a confession made in
consequence. The test is objective, taking into account all the circumstances.
(A hypothetical question)
A hypothetical question:
o Under s76(2)(b), the court does not consider the reliability of the confession which has been made; rather, it considers hypothetical question: whether any confession which the accused might make in
consequence of what was said/done was likely to be rendered unreliable in the circumstances prevailing at the time (R v Gill).
b) Second step: ask whether what was said and done was likely, in the circumstances, to render unreliable a confession made in
consequence. The test is objective, taking into account all the circumstances.
(A hypothetical question)
Re Proulx; ‘the test is NOT whether the actual confession was untruthful or inaccurate.
It is whether whatever was said or done was, in the circumstances existing at the time of the confession, LIKELY to have rendered such, or ‘any such’ a confession unreliable’.
I.E. court must consider: whether what happened (the thing said/done), was likely in the circumstances, to induce AN unreliable
confession to the offence in question; irrelevant of whether the actual confession was reliable
b) second step
Examples of unreliable confessions
(a) Failure to caution
R v Doolan: had been failure to caution appellant at interview or remind him of an earlier caution.
HELD: confession wrongly admitted; failure to caution was likely, in the circumstances existing at the time, to render the confession unreliable.
b) denial of access to legal advice
R v McGovern: appellant when arrested was 19 years old, 6 months pregnant, of limited intelligence. Was refused access to solicitor
(breach of Code C). Was ill, distressed, not readily able to understand the caution. During her first interview she confessed (to taking part in the killing). During 2nd interview made further admissions in presence of solicitor. CA HELD: first confession was made as a result of
denial of access to a solicitor = likely to be unreliable (even though later admitted to be true). 2nd interview, because first interview was conducted in breach of Code C, the subsequent interview was similarly
tainted.
(c) deprivation of sleep: R v Trussler: D had been 18 hours without rest prior to his confession during interview. Clear breach of Code C; confession unreliable, should be excluded.
c) third step
Ask whether prosecution has proved beyond reasonable doubt that the confession was not obtained in consequence of the thing said and done
Is a question of FACT for the JUDGE, and must be approached in a common-sense way (Barry).
Once represented by Defence counsel (acting on instructions from D or from other evidence) to court that the confession ‘was or may have been obtained’ by anything said/done likely in circumstances to render confession unreliable
= the court shall not allow the confession to be given in evidence against him EXCEPT in so far as prosecution proves to court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not
obtained as aforesaid’.
- See below, ‘Making or Challenging Applications to exclude confessions’
Evidence discovered as a result of an excluded confession (discovery of Facts; and show speech/writing/expression
Police and Criminal Evidence Act 1984
S76(4)
[THE LAW]
Police and Criminal Evidence Act 1984, s. 76
(4) The fact that a confession is wholly or partly excluded in pursuance of this section shall not affect the admissibility in evidence—
(a) of any facts discovered as a result of the confession; or
(b) where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, of so much of the confession as is necessary to show that he does so.
(5) Evidence that a fact to which this subsection applies was discovered as a result of a statement made by an accused person shall not be admissible unless evidence of how it was discovered is given by him or on his behalf.
(6) Subsection (5) above applies—
(a) to any fact discovered as a result of a confession which is wholly excluded in pursuance of this section; and
(b) to any fact discovered as a result of a confession which is partly so excluded, if the fact is discovered as a result of the excluded part of the confession.
Pace s76(4)The fact that a confession is wholly or partly excluded in pursuance of this
section shall not affect the admissibility in evidence:
o (a) of any facts discovered as a result of the confession; OR
o (b) where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, of so much of the confession as is necessary to show that he does so’.
S76(4) applies only to matters coming to light as a result of a confession excluded under s76 itself
where the confession is excluded under s78 court’s discretion rather than s76 = s76(4) does NOT apply, but the common-law principles suggest the SAME WOULD APPLY RE S78, suggest that evidence discovered in consequence is admissible.
S76(4)(a), any facts discovered as a result of the confession
Even where a confession is excluded, this does not prevent facts discovered as a result of it being relied on in evidence
W made a full confession to receiving stolen goods; goods were thus found in her bed; confession inadmissible; but prosecution allowed to prove the discovery of the stolen property.
S76(4)(a)
Excluding confession has no application to the admission or rejection off acts, whether the knowledge of them obtained in consequence of in admissible confession or from any other source; a fact, if it exists, must exist invariably in the same manner, whether the confession from which it is derived be in
other respects true or false
S76(4)(a) - Even where a confession is excluded, this does not prevent facts discovered as a result of it being relied on in evidence - is this in light with Art 6 ECHR
yes!!
S76(4)(a) - Even where a confession is excluded, this does not prevent facts discovered as a result of it being relied on in evidence
Some difficult possible re where the ‘confession’ ends and facts ‘discovered
as a result’ begin:
S82(1) definition of confession: includes ‘any statement wholly or partly adverse to the person who made it…whether in words or
otherwise’.
- So words, documents or conduct which come within this definition, and which fall foul of exclusionary rule in s76(2), cannot be treated as ‘facts’ for s76(4)(a).
So words, documents or conduct which come within this definition, and which fall foul of exclusionary rule in s76(2), cannot be treated as ‘facts’ for s76(4)(a).
o Eg, a filmed re-enactment of a murder, in which D is shown disclosing of the murder weapon, should be regarded as a confession statement, rather than independent facts.
s76(5) Evidence that a fact to which this subsection applies was discovered as a result of a statement made by an accused person shall not be admissible unless evidence of how it was discovered is given by him or on his behalf.
It would not be open to the prosecution to suggest that the body was discovered by reason of something said by the D, eg:
o ‘members of the jury, we cannot tell you what the D said, but as a result of what he said the police discovered the body of the deceased’
[[this would NOT be allowed]]
S76(4)(b), speaks/writes/expresses himself in a particular way
- Situations where, even though the words of the confession have been excluded, prosecution wants to use such part of confession as is necessary to show the accused speaks, writes or expresses himself in a particular way.
S76(4)(b), speaks/writes/expresses himself in a particular way
Care must be taken to avoid prejudice to accused when adducing such evidence: prosecution can adduce only ‘so much of the confession as is necessary to show’ the relevant feature. But even this might be impossible without the jury becoming aware that a confession has been made. In such
cases, will have to consider whether the risk of prejudice can be overcome by a direction as to the purpose for which the evidence has been adduced, or whether the discretion of the court to exclude prosecution evidence (under s78 or common law) should be exercised.
S76(4)(b), speaks/writes/expresses himself in a particular way: CASE LAW EXAMPLES
- Voisin: cannot made any difference to the admissibility of handwriting whether it is written voluntarily or under compulsion of threats.
- Eg, R v Nottle (2004, CA): appellant convicted of crim damage by scratching
‘Fuck you Jutin’ on a number of cars. In interview, appellant asked to write
you ‘Fuck you Justin’. Appellant wrote out ‘Fuck you Jutin’, and later admitted he spelt it Jutin.
CA took, the misspelling to constitute a
‘confession’ In that case, the admission was not excluded under s76(2) PACE. But in any event the words could be relied on to show how Nottle spelt ‘Jutin’, under s76(4)(b).
Might be used, eg, in a rape case: where a tape-recorded confession is ruled inadmissible; but the voice of the accused can be heard speaking with an unusual speech impediment which is described by the victim, or with a particular local accent.
Exclusion of other prosecution evidence at common law and under section 78 of the Police and Criminal Evidence Act
s78 = court discretion to exclude any evidence from P
Police and Criminal Evidence Act 1984, s. 78
[the law]
(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
(2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.
When using its discretion under s78, which party’s evidence can the court exclude?
P
confession evidence tendered by the prosecution
CA interfering with with the exercise of a trial judge’s discretion to admit evidence under s. 78?
CA rarely interfere with trial judge’s discretion under s78, unless satisfied that
the decision was perverse.
The procedure/test to be adopted where an application is made to exclude prosecution evidence under s. 78
It is not a matter to which the burden of proof applies
CA: it is for an accused to persuade the court that the evidence of a prosecution witness ought to be excluded under s78; but burden is ‘no higher than the balance of probabilities’
i.e. where accused seeking to exclude, needs to prove on ‘balance of probabilities’ (CF s76, where burden is on prosecution to show that
confession should not be excluded, beyond reasonable doubt).
The procedure/test to be adopted where an application is made to exclude prosecution evidence under s. 78
It is not a matter to which the burden of proof applies
CA: it is for an accused to persuade the court that the evidence of a prosecution witness ought to be excluded under s78; but burden is ‘no higher than the balance of probabilities’
i.e. where accused seeking to exclude, needs to prove on ‘balance of probabilities’ (CF s76, where burden is on prosecution to show that
confession should not be excluded, beyond reasonable doubt).
S78 and PACE Codes of Practice
The consideration if the breaches of codes result in an exclusion of evidence
Admissible in evidence in both criminal and civil proceedings
S78 and PACE Codes of Practice
Breach of a code provision = not automatic exclusion of evidence.
S78 and PACE Codes of Practice
The consideration if the breaches of codes result in an exclusion of evidence: court to consider:
The question is whether the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
Even a plain and admitted breach, though it is to be deplored, may fail to trigger exclusion if it does not operate in a way prejudicial to the accused
Roberts: Breach of a provision designed to protect another suspect could not
be used by the accused
there was no causal link between the breaches and R’s admission.
But the question should be whether the breach affected the fairness of using R’s confession, not whether the breach against the other accused caused the confession.
Breach of a code of practice is in many cases an important factor in considering whether to exclude evidence, s 78
Often involves Code C: covering detention, treatment and questioning of
persons by police
No different in principle to whether the breach is of the codes of a breach of a provision of the body of the 1984 Act itself. Same principles.
CA: undesirable to give any general guidance on way in which a judge’s s78
discretion should be exercised; as circumstances may vary infinitely.
It is submitted that the following considerations have proved to be of importance where s. 78 is concerned.
i) nature & extent of breach
ii) Breach of right to legal advice (s58 PACE)
iii) Breach of interview Procedures
iv) Failure of interrogator to appreciate that he is conducting an ‘interview’ (within the meaning of Code C)
v) bad faith
It is submitted that the following considerations have proved to be of importance where s. 78 is concerned.
Nature and extent of breach: Main objective of Codes is to achieve fairness to
(1) the accused, protect his legal rights; and
(2) to the crown and its officers, to reduce the incidence or effectiveness of unfounded allegations of malpractice.
It is submitted that the following considerations have proved to be of importance where s. 78 is concerned.
Nature and extent of breach:
If there are ‘significant and substantial’ breaches
prima facie the standards of fairness have not been met = likely to adversely affect fairness
of proceedings. Whether such an adverse effect that justice requires exclusion of the evidence.
Breach of right to legal advice (s58 PACE)
prima facie the standards of fairness have not been met = likely to adversely affect fairness
of proceedings. Whether such an adverse effect that justice requires exclusion of the evidence.
In Scotland: prosecution cannot lead and rely on evidence of anything said by accused without benefit of legal advice during questioning (unless compelling reasons).
Not same strict approach re s78 in Eng & Wales.
It is submitted that the following considerations have proved to be of importance where s. 78 is concerned.
Breach of legal advice
Safety interviews conducted under Terrorism Act 2000
pose a particular difficulty re Article 6; the use of safety interviews (no legal reps present)
may be justifiable in exceptionally serious and imminent threat to public safety (after London bombings 2005). Key factors (Ibrahim v UK):
o (i) whether there were compelling reasons for the restriction of access
o (ii) whether, viewing proceedings as a whole, the trial was fair
It is submitted that the following considerations have proved to be of importance where s. 78 is concerned.
Breach of legal advice
Waiver of legal advice should be voluntary, informed and unequivocal:
So exclusion under s78 might be required if the right to legal advise was not fully presented to the accused.
o Especially if accused is a foreigner with lack of familiarity with police procedures = must be properly informed of the right.
o Minor defects in the communication of the right to legal advice, that do not bear on the exercised of informed choice, do not give rise to unfairness.
It is submitted that the following considerations have proved to be of importance where s. 78 is concerned.
Breach of interview Procedures
Breaches of Code D provisions re interviewing = tend to lead to s78
exclusion.
R v Keenan, CA 1990: evidence of a confession should have been excluded
under s78, due to significant and substantial breaches of Code C which caused unfairness to the appellant. (1/2)
Appellant was charged with possessing an offensive weapon recovered from a car.
Defence was: D had only recently purchased the car, had no idea the weapon was there. Prosecution relied on a confession
(which D denied making) that he knew about the weapon allegedly made to police officers in the charge room of the police station.
At trial, defence objected to admissibility of the confession on basis of number of breaches of Code C (the ‘verballing’ provisions), including requirements to make a record of any interview and to allow a suspect opportunity to read the record of the interview and sign it as correct or to indicate the respects in which he considered
it inaccurate.
o Code C designed to ensure that interviews are fully recorded; court likely to exclude evidence obtained following ‘substantial breaches’ by the interrogator. But not automatic exclusion
R v Keenan, CA 1990: evidence of a confession should have been excluded
under s78, due to significant and substantial breaches of Code C which caused unfairness to the appellant. (2/2)
o D was convicted, judge allowed the confession admitted.
o Conviction quashed on appeal.
Hodgson J: Code C addresses two main concerns:
(1) provides safeguards for detained persons and provides for their proper treatment with object of ensuring that they are not subjected to undue pressure or oppression. And designed to make it difficult for a detained person to make unfounded allegations against the police which might otherwise appear credible.
(2) provides safeguards against the police inaccurately recording or inventing the words used in questioning a detained person (‘the
verbals’). And provisions designed to make it more difficult for a D to make unfounded allegations that he has been ‘verballed’.
Unfairness had been caused to D; he had been put at a substantial disadvantage because he had been denied the contemporaneous opportunity to correct any inaccuracies in what the police alleged he had said.
Where there have been ‘significant & substantial breaches’ of the ‘verballing’ provisions of Code C = the evidence obtained will frequently be excluded.
Cohleho: evidence of a conversation with a police officer in Portuguese should have been excluded because of the attendant risk of
misunderstanding
This case highlights the importance of the Codes of Practice in safeguarding not only the interests of a suspect; but also the interests of the POLICE when it comes to confession evidence:
Eg, if a suspect confesses to an offence outside a formal interview at a police
station, the requirements under Code C are that a record of his confession is made (and timed & signed by the maker) and the suspect is asked to read the record and sign it as correct or indicate how he considers it accurate; and that the confession is put to the suspect at the commencement of his interview at the Police Station when he should be asked to confirm or deny it.
= these measures allow the suspect to deal with the alleged confession at the
time it is said he made it; and provide some measure of protection for the
police should it be suggested subsequently that they invented the
confession
Provisions relating to cautioning (interview without caution): breach can lead to exclusion
Williams: W questioned without caution
No appropriate adult in interview:
breach of right to appropriate adult in interview can trigger exclusion (and might also lead to the failure of accused to recognise the need for legal advice; a waiver in these circumstances would be worthless).
Right to know why arrested: and be told at least ‘in general terms the level of offence in respect of which he is suspected’
= could be sufficient to warrant exclusion under s78 of a confession (where suspect, being questioned for theft, was not warned that he was also under suspicion for the more serious offence of robbery and of manslaughter of same victim).
Accused might reach a view on matters such as whether to seek legal advice, and what to say in response to questions, in light of
understanding of the seriousness of the matter under investigation.
Failure of interrogator to appreciate that he is conducting an ‘interview’ (within
meaning of Code C) by questioning a suspect about his involvement in an offence
= a common peg on which to hand arguments for s78 exclusion
i) Because such failure often leads to multiplicity of relevant breaches of Code C.
Failure of interrogator to appreciate that he is conducting an ‘interview’ (within
meaning of Code C) by questioning a suspect about his involvement in an offence
= a common peg on which to hand arguments for s78 exclusion
[CASE LAW]
Absolam: breaches: failure to caution; to record; to offer legal advice prior to impromptu questioning by custody officer. -= confession excluded.
Cox: informal questioning in C’s own home, amounting to interview, should have taken place only in police station; inadequate recording; late caution = confession excluded
Weekes: inadequate recording of interview; failure to ensure presence of appropriate adult at convo in police car = exclude.
Okafor: questioning without caution = confession excluded.
Weedersteyn: W believed he was assisting officers to find drug importers; was not aware of significance of his own incriminating statement taken without caution & no record shown to W = confession excluded.
Hawkins: H was, when questioned by officer, in shock, breathing with oxygen mask, given morphine = officer’s failure to realise that H was a suspect rather than a mere witness was immaterial; = exclude
Breaches re interviews which did NOT trigger exclusion
Breaches may not trigger s78: examples
Matthews: breach re failure of police officer to show the suspect a note of a conversation which suspect had asked to keep ‘off the record’ = no exclusion of confession.
If breaches are technical; or Code C was ‘largely followed’ = may not result in exclusion; OR
A breach may be more than technical, but in the circumstances no unfairness results from admitting the evidence:
i) Dunn: failure of interviewer to observe provisions to prevent fabrication of interview record; would have been sufficient to require
exclusion but for the fact that D’s solicitor clerk was present during the alleged conversation. Trial judge could admit the evidence; presence of clerk would have been likely to inhibit fabrication.
Findlay: 2 suspects had wrongly been held incommunicado; but one had subsequently had access to a solicitor for ½ hour before signing the notes of his interview = confession could be admitted.
Ridehalgh: where failure of police inspector to caution a fellow officer; not unfair to admit the incriminating response, because:
(i) the person questioned was himself a police officer;
(ii) his willingness to repeat the same matters shortly afterwards
under caution.
Rehman: failure to determine at trial whether there was sufficient evidence on which to caution a traveller in whose bags drugs were
found, were not fatal = even if a caution had been required, those stopped & questioned in a Customs check are already aware of the
formality of the occasion.
It is submitted that the following considerations have proved to be of importance where s. 78 is concerned:
Bad faith
- It is NOT the function of course to use s78 to discipline the police;
BUT, the presence of bad faith, where police have breached the Act or Code..
= is a factor making it more likely the evidence will be excluded.
- Alladice, CA: there is a distinction to be drawn between cases where the police have acted in bad faith; and where police have, albeit in good faith, fallen foul of s58/Code.
Where ‘bad faith’ breach =
court will have little difficulty excluding a confession under s78.
Where ‘good faith’ breach =
evidence may still be excluded in many cases, so police should use their powers to delay access to solicitor only with great circumspection; but it was not possible to say in advance what would or would not be fair.
Walsh: similar distinction =
bad faith may make substantial or significant that which might not otherwise be so; but the contrary does not follow.
Breaches which are themselves substantial/significant are not rendered otherwise by good faith of officers.
Could exclude evidence even if in impropriety (Samuel) = though impropriety is a factor court might consider re fairness.
NB, simply because evidence has been irregularly obtained (eg, in breach of a Code) = Does NOT render It inadmissible per se
The key test for court re s78 is whether the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
* The court is NOT concerned with marking its disapproval of police conduct by excluding evidence, or otherwise seeking to punish the
prosecution for the way in which evidence has ben obtained; it is simply concerned with whether fairness dictates that the evidence should be excluded.
- So the court will consider how, if it at all, D has been unfairly prejudiced.
At common law, where the admissibility of a confession statement was to be challenged in a trial on indictment, the following practice was followed:
- (a) The defence advocate would notify the prosecutor that an objection to admissibility was to be raised.
- (b) The prosecutor would then refrain from mentioning the statement in opening to the jury.
- (c) At the appropriate time the judge would conduct a trial on the voir dire to decide on the admissibility of the statement (Ajodha v The State [1982] AC 204).
s76 and s78 must be made before the evidence is adduced
If a confession is already admitted, and then want to challenge its
admission
= would have to use common law rules
(a) Sang or
(b) evidence obtained from the accused, improper/unfair means, might operate ‘unfairly’ against accused
Voir Dire
The general rules regarding the holding of a voir dire, or trial within a trial, in order to determine disputed issues regarding preliminary facts on which the admissibility of evidence depends
Voir Dire
to admit a confession, Prosecution has to prove, beyond reasonable doubt, that the confession was not obtained by oppression or anything said/done likely to render confession unreliable, IF either:
o Defence make a representation that such a confession was obtained in such a way;
o OR court of its own motion can require that prosecution prove beyond reasonable doubt that the confession was not so obtained.
Where the facts on both sides are disputed (disputed issues re preliminary facts on which the admissibility of evidence depends) = judge will have to make findings of fact in a voi dire
o Done in a voir dire (‘trial within a trial’)
o Evidence is called. Prosecution will call evidence. Defence entitled to call evidence.
o The accused may give evidence if he wishes to testify.
Voir dire takes place in open court, and in the presence of D, but in absence of jury (in Crown Court).
In Liverpool Juvenile Court, ex parte R [1988] QB 1, it was held that s. 76 requires magistrates conducting a summary trial to hold a voir dire to determine admissibility where the defence, before the close of the prosecution case, represent to the court that the confession was obtained in breach of s. 76(2). The decision represents a significant departure from the common law, which regarded the voir dire as inappropriate in summary trials (see further as to summary trials, D22.44). As magistrates are judges of both fact and law, a ruling that a confession is to be excluded will mean that they have to put the objectionable material out of their minds when considering guilt; this is a task with which ‘they are well capable of coping both by training and by disposition’ (Hayter v L [1998] 1 WLR 854, commenting on the comparable situation which arises after the s. 78 discretion to exclude has been exercised).
According to Dhorajiwala, the court’s power under s. 76(3) to require the prosecution to prove that the confession was not obtained in breach of s. 76(2) may lead the court to hold a voir dire in circumstances where counsel has not requested it. This would seem to be a power that should be sparingly exercised.
Criminal Justice Act 2003, s. 128
[LAW]
(2) Subject to subsection (1), nothing in this Chapter makes a confession by a defendant admissible if it would not be admissible under section 76 of the Police and Criminal Evidence Act 1984.
The reference to ‘this Chapter’ is to Chapter 2, Hearsay Evidence, which contains the exceptions to the hearsay rule. The clear intention is to ensure that alternative exceptions are not invoked in order to admit confessions that fail to satisfy s. 76. The most obvious is CJA 2003, s. 114(1)(d), (the ‘interests of justice’ exception: see F17.34), under which it is possible to admit confessions, including those of third parties.
Admissibility of evidence obtained as a result of inadmissible confessions
Proving confession by other hearsay exceptions (cannot be used if inadmissible under s76)
S.128 notes
i.e.: alternative exceptions re hearsay evidence can NOT be invoked to admit confessions that fail to satisfy s76.
eg, s114(1)(d), ‘interests of justice’ exception to hearsay = under which it is possible to admit confessions (including those of third parties)
= but cannot use this to make a confession admissible if it is inadmissible under s76.
