Unit 6 - PACE - Confessions Flashcards

Question

Does the court have any discretion when it is challenged under s76 and the prosecution cannot prove admissibility beyond reasonable doubt?

Answer 1

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

Answer 2

That is covered by s76A Pace, regulation of admission of the confession of a co-accused as defence evidence.

Answer 3

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

Answer 4

- 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.

Answer 5

(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

Answer 6

- 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.

Answer 7

a) Deliberate; & b) Serious Nature: and where the court is anxious to mark its disquiet at the methods employed.

Answer 8

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.

Answer 9

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

Answer 10

- 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)

Answer 11

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.

Answer 12

(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.

Answer 13

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

Answer 14

- 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

Answer 15

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

Answer 16

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).

Answer 17

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*

Answer 18

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.

Answer 19

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

Answer 20

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).

Answer 21

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

Answer 22

(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.

Answer 23

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’

Answer 24

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.

Answer 25

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’.

Answer 26

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.

Answer 27

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.

Answer 28

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).

Answer 29

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.

Answer 30

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]]

Answer 31

* 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.

Answer 32

* 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.

Answer 33

s78 = court discretion to exclude any evidence from P

Answer 34

(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.

Answer 35

P confession evidence tendered by the prosecution

Answer 36

CA rarely interfere with trial judge’s discretion under s78, unless satisfied that the decision was perverse.

Answer 37

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).

Answer 38

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).

Answer 39

Admissible in evidence in both criminal and civil proceedings

Answer 40

Breach of a code provision = not automatic exclusion of evidence.

Answer 41

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

Answer 42

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.

Answer 43

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.

Answer 44

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

Answer 45

(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.

Answer 46

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.

Answer 47

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.

Answer 48

Not same strict approach re s78 in Eng & Wales.

Answer 49

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

Answer 50

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.

Answer 51

Breaches of Code D provisions re interviewing = tend to lead to s78 exclusion.

Answer 52

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

Answer 53

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.

Answer 54

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

Answer 55

Williams: W questioned without caution

Answer 56

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).

Answer 57

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.

Answer 58

i) Because such failure often leads to multiplicity of relevant breaches of Code C.

Answer 59

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

Answer 60

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.

Answer 61

= is a factor making it more likely the evidence will be excluded.

Answer 62

court will have little difficulty excluding a confession under s78.

Answer 63

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.

Answer 64

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.

Answer 65

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.

Answer 66

* (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).

Answer 67

= would have to use common law rules (a) Sang or (b) evidence obtained from the accused, improper/unfair means, might operate ‘unfairly’ against accused

Answer 68

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

Answer 69

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.

Answer 70

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.

Answer 71

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.

Answer 72

(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

Answer 73

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.