Evidence IIII (Turnbull, confessions)

Question 1

What type of evidence are the Turnbull Guidelines concerned with?

Answer 1

Visual identification

Investigation stage = PACE Code D
Trial stage = Turnbull guidelines

Question 2

When should a Turnbull direction be given?

Answer 2

When case against accused depends ‘wholly or substantially’ on the correctness of visual identification and D maintains witness - who picked them in formal ID procedure - was mistaken

Question 3

Is a Turnbull direction necessary in cases of alleged recognition?

Where witness has seen someone many times on street and then thought they recognised them in ID procedure

Answer 3

Yes - can still be wrong

Question 4

When is a Turnbull direction not required?

Answer 4

Where case does not rest on identification evidence

Question 5

When is a Turnbull direction unlikely to be required?

Answer 5

Where presence at the scene is admitted but D disputes role in incident

But each case turns on own facts!

Question 6

What are the 3 key elements of a Turnbull warning?

Answer 6

1. Instruct jury of need for the warning (mistaken witnesses can be convincing)
2. Direct jury to examine circumstances in which identification by witness(es) came to be made
3. Remind jury of specific weaknesses in identification evidence

Question 7

What evidence is capable of supporting the identification (which the judge should direct jury to consider)?

Answer 7

• Scientific evidence
• Multiple identifications (if sufficient)
• Accused’s bad character/previous convictions
• Accused’s silence on interview (if proper for AI to be drawn)
• Accused’s admissions at scene/in interview/witness box

Question 8

Under the Turnbull guidelines, when must judge stop the case?

Answer 8

At the close of prosecution’s case if it is poor and unsupported

Re visual identification, the judge must answer two principal questions:

1. What is the quality of the identification evidence?
2. Is there other evidence to support the correctness of the identification?

Question 9

Is quality of evidence assessed before or after Turnbull direction?

Answer 9

Before

Question 10

When assessing the quality of the visual identification evidence, what circumstances should judge examine?

Answer 10

• Time witness could observe person
• Distance between witness and person
• Light/visibility
• Interference with observation (e.g. obstruction)
• If witness had seen D before and in what circumstances
• Time between original observation and formal ID procedure
• Significant difference between description given to police and appearance of D

Question 11

What should happen if the quality of identification evidence is good or bad?

Answer 11

• Good = jury safely left to assess value of identifying evidence provided adequate Turnbull warning given for special need for caution
• Bad = judge considers if any other evidence to support correctness of identification

Question 12

If the quality of evidence is bad and the judge considers other evidence to support correctness of identification, what should happen if there is no other/some supporting evidence? In what circumstances will a Turnbull warning be given?

Answer 12

• No other = judge should withdraw case from jury and direct acquittal (no Turnbull warning given)
• Some supporting = judge can leave weak identification to jury to be assessed alongside supporting evidence (Turnbull warning given)

Question 13

Summary - will a Turnbull direction always be required?

Answer 13

Where the D disputes yes - unless case does not rest on it or the evidence is poor quality and there is no other supporting evidence (in which case judge should withdraw case)

Question 14

Turnbull summary

Answer 14

Question 15

What is a confession under s82?

Answer 15

Any statement wholly or partly adverse to the person who made it whether made to person in authority or not and whether in words or otherwise

Question 16

What does the wide definition of a confession catch? What will it not catch?

Answer 16

Catches:

• Unequivocal confessions of guilt ‘I did it
• Mixed statements - partly adverse maybe, I didn’t do it but I was glad to see them die
• Non-word gesture - depending on contextnod, sign, gesture

Will not catch wholly exculpatory statements “it was nothing to do with me”

Question 17

Under s76, what are the two ways a confession can be challenged?

Answer 17

1. S76(2)(a) - oppression
2. S76(2)(b) - anything said or done which made the confession unreliable as a result

Actual wording for 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

Question 18

Does s76 automatically come into play to challenge confessions? What does s76(3) provide?

Answer 18

• No - only operates where represented to court by defence that s76(2)(a) or (b) applies
• S76(3) provides that court can require prosecution to prove confession was not obtained as set out in (a) and (b)

Question 19

How is ‘oppression’ defined as part of s76(2)(a)?

Confession obtained by oppression of person who made it

Answer 19

Widely and given ordinary meaning - including torture, inhumane/degrading treatment, and use/threat of violence

‘Exercise of power in burdensom, harsh or wrongful manner’ (Fulling)

Question 20

Is ‘oppression’ assessed the same for everyone?

Answer 20

No - what might be oppressive to one person may not be appressive to another - legitimate to consider character/attributes of accused

Question 21

Once defence raise that confession was obtained by oppression (or court acts on its own under s76(3)), what must the prosecution do? What if they cannot do this?

Answer 21

• Prosecution must prove beyond reasonable doubt it was not so obtained
• If they cannot = confession must be excluded as inadmissible evidence

Question 22

If the prosecution cannot prove beyond reasonable doubt that the confession was not obtained by oppression and so the confession must be excluded, does it matter even if the confession was true?

Answer 22

Does not matter - must still be excluded

Question 23

If judge is satisfied that prosecution has proved beyond reasonable doubt that a confession was not obtained by oppression (and so it is not excluded), is that the end of the story for the defence?

Answer 23

No - defence can seek to discredit the evidence during trial by cross-examination and by making references to it in closing speech; obtained by oppression and so unreliable

Then

Question 24

How are cases of s76(2)(b) - things said or done - approached?

3 stage test from R v Barry

Answer 24

1. Identify thing said/done (requires judge to consider everything said/done by police)
2. Ask whether what was said/done was likely in circumstances to render unreliable a confession made as a consequence (objective test)
3. Ask whether prosecution has proved beyond reasonable doubt that confession was not obtained in consequence of thing said/done (question of fact for judge; common sense)

Question 25

What will the thing said/done usually be? What if it amounts to oppression, which s76(2) is used here?

Answer 25

• Thing said/done will usually be a breach of PACE (detention, treatment, questioning)
• If it amounts to oppression = either or both provisions can be used

Breach of PACE includes right not to be held incommunicado, to legal advice, cautioned before being questioned etc.

Question 26

What is the hypothetical question asked when deciding if thing said/done was likely to have rendered a confession unreliable? What does ‘unreliable’ mean?

Answer 26

• Hypothetical Q = whether there is a likelihood that any confession would be unreliable in the prevailing circumstances
• Unreliable = cannot be relied upon as being the truth

Question 27

What makes the test under s76(2)(b) an objective one? What are some examples?

Answer 27

• Objective = taking into accout all the circumstances
• Examples = D without rest for 18 hours, failure to caution at interview, denial of access to legal advice

Question 28

What must prosecution do once defence raises s76(2)(b)?

Answer 28

Same as s76(2)(a) - prove beyond reasonable doubt that confession was not obtained in consequence of thing said/done

Question 29

What does the whole/partial exclusion of evidence (as a result of s76(2)) not affect the admissibility of?

Answer 29

• S76(4)(a) - Any facts discovered as a result of the confession
• S76(4)(b) The speech, writing or expressions of the accused (where confession relevant to showing how the accused does so)

Question 30

What does it mean for facts discovered as a result of the confession to not be excluded?

Answer 30

Facts discovered as a result of confession can be relied upon in evidence (no rule excluding the ‘fruit of the poisoned tree’)

E.g. police locate body of a murder victim following confession of a D, confession excluded = the fact of the discovery of the body in that place remains admissible

Question 31

What can the prosecution not do where the confession is excluded and they rely on the facts discovered as a result of it?

Answer 31

The prosecution cannot suggest that body was discovered by reason of something D said

Question 32

When will ‘speech, writing or expressions’ of the accused be relevant?

When relied upon following exclusion of confession

Answer 32

Where prosecution wants to use such part of confession as is necessary to show accused speaks, writes or expresses himself in particular way

Nottle - the way D spelled a name (scratched ‘fuck you Justin’ on a number of cars) could be relied upon even if evidence excluded under s76

Question 33

How does s78 fit into the exclusion of confessions (s76)?

Answer 33

Common practice for defence to seek to exclude a confession under s76 and, as an alternative, s78

Question 34

As the same facts will be used in an application, why would s78 be used when s76 is already being used?

Answer 34

S78 could exert a broader protective sweep than s76 and act as an override protection for a detainee (s78 + common law enables court to examine a case from perspective of overall fairness)

E.g. detainee woefully deprived of legal advice but in circumstances where it would not be said that interview without representation was ‘likely to render any confession unreliable’ - s78 might nonetheless intervene to exclude confession by incorporating broader Art 6 type considerations

Question 35

How was R v Keenan helpful in highlighting the importance of th Codes in safeguarding not only the interests of a suspect but also interests of the police in context of s78 exclusion?

Good illustration of how s78 will apply when s76 does not

Answer 35

• Pros relied on confession (which appellant denied making) that was allegedly made to police officers in charge room
• Defence objected at trial on basis of Code requiring police to make record of interview and to allow suspect to read and sign it as correct or indicate how he saw it as inaccurate
• Court held on appeal that unfairness caused by appellant as he had been denied contemporaneous opportunities to correct accuracies in what police alleged to have said

These measures allow the suspect to deal with the alleged confession at the time it is said that the suspect made it. They also provide some measure of protection for the police should it be suggested subsequently that they invented the confession.

Question 36

Does evidence being obtained irregularly (e.g. in breach of codes) make it intrinsically inadmissible under s78?

Answer 36

No - key test is whether the admission of evidence would have such an adverse effect on fairness of proceedings that court ought not to admit it

Not concerned with marking disapproval of police conduct/punishing prosecution - simply whether fairness dictates that evidence should be excluded in circumstances

Question 37

Regarding the application to exclude evidence of a confession, how does advance notification differ between magistrates’ and Crown?

Answer 37

• Magistrates = defence skeleton argument in support 10 business days before trial, prosecution response 5 business days after
• Crown = defence skeleton argument in support of any s76/s78 arguments, when prosecution serve a response, and when arguments will be heard

Question 38

Regarding application to exclude evidence of a confession, what is the difference between magistrates’ and Crown re when should it be dealt with?

Answer 38

• Magistrates’ - as preliminary issue
• Crown - at pre-trial hearing listed specifically for this purpose or dealt with just prior to opening case to jury

Question 39

In the Crown, how is it decided whether application to exclude confession evidence will be dealt with at a pre-trial hearing or just prior to opening case to jury?

Answer 39

• Pre-trial hearing if prosecution needs to know if confession admissible to open case in meaningful way/result will be decisive (continue with case or not)
• Just prior to opening case where no pressing need to deal with at outset

Question 40

Where application to exclude confession evidence will be dealt with during the trial, what should prosecution not do?

Answer 40

Adduce evidence before court or refer to it in opening speech

Question 41

Where a challenge is raised under s76(2)(a)or(b) and facts on both sides are disputed, what needs to happen?

Answer 41

A voir dire - judge will resolve disputed facts before ruling on admissibility in absence of jury

NB a hearing on the application to exclude evidence will also be dealt with in absence of jury (in pre-trial hearing, prior to opening of a case), but will not be considered a ‘voir dire’

Question 42

What happens if a judge fails to resolve disputed facts on a voir dire before ruling on admissibility?

In context of s76 application

Answer 42

The resulting conviction is likely to be quashed (so important to decide facts in voir dire)

Logically impossible for judge to be satisfied that prosecution has proved BRD that confession has not been/might not have been obtained by either of means set out in s76(2) if judge has heard no evidence either way

Question 43

Will a voir dire always be required in the context of a s76 application?

Answer 43

No - if the background facts are agreed, there is no need for a voir dire and legal arguments can be made on agreed factual basis

Defence rely on breaches of police for s76 argument, prosecution agree that these breaches occurred but wish to argue they do not amount to oppression/unreliability

Question 44

If the ruling of a confession exclusion application is to exclude the confession, what can the prosecution not do? What if this deprives prosecution of only real evidence?

Answer 44

• Cannot refer to it during trial
• If no more real evidence left = pros has no option but to offer no evidence against D and a not guilty verdict entered

Question 45

If the ruling is that the confession should not be excluded and the prosecution can adduce it, what can D do?

Answer 45

Raise same issues before jury e.g. suggest to jury that confession is unreliable in spite of judge ruling it admissible