Confession Evidence

Question 2

What is a Confession?

Answer 2

Section 82 PACE 1984
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

Question 3

Does a confession have to be made to a person in authority to be admissible?

Answer 3

No. Can be made to D spouse, partner or fellow inmate

Question 4

What is the effect of a breach of a suspect’s rights on confession evidence ?

Answer 4

D’s solicitor is able to argue that the confession. be excluded by the court under section 76 and 78 of PACE 1984.

Question 5

What link must exist for D to successfully argue that confession be set aside after a police breach?

Answer 5

A causal link between alleged breach and resulting confession

Question 6

What actions must be taken to ensure ‘off the record’ comments are admissible?

Answer 6

the police must keep a written record which is signed and dated by the officer and the defendant will be given an opportunity to read the record and sign it as being an accurate record of what was said.

Question 7

What are the three main provisions under which the defence may rely to challenge admissibility of a confession?

Answer 7

under s 76 and 78 of PACE 1984
- oppression, unreliability and unfairness

Question 8

What are the two grounds under s76(2) of PACE 1984

Answer 8

Oppression and
Unreliability

Question 9

What is the standard of proof that the prosecution must reach to prove that a confession should not be dismissed under s76(2) PACE

Answer 9

beyond reasonable doubt

Question 10

What does Oppression mean under s76 PACE ?

Answer 10

torture, inhuman, or degrading treatment and use or threat of violence
held to be subjective and vary depending on circumstances/personal characteristics of the defendant

Question 11

What are examples of unreliable confessions ?

Answer 11

Confessions obtained as a result of an inducement (promise of bail or a promise that a prosecution would not arise from the confession)

Hostile and aggressive questioning

Failure to record accurately what was said

Failure to caution

Failure to provide an appropriate adult where one is required

Failure to comply with the Code in relation to the detention of the accused

Failure of the defence solicitor or appropriate adult to act properly

MUST BE A CAUSAL LINK BETWEEN WHAT HAPPENED AT THE POLICE STATION AND RESULTING CONFESSION

Question 12

Where the conduct of the suspect created the unreliable circumstances what happens to the confession?

Answer 12

The confession will not be excluded

Question 13

What is stated under section 78 PACE ?

Answer 13

The court may refuse to allow evidence on which the prosecution proposes to rely 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.

Question 14

What is the key difference between s78 unfairness and s76 oppression and unreliability

Answer 14

A breach of Code C does not automatically result in the confession being excluded under s78 of PACE 1984.

Question 15

what is the procedure for deciding admissibility of confession?

Answer 15

admissibility may be challenged in court by the defence or by the court of its own volition in the course of a voir dire

Question 16

What is a voir dire?

Answer 16

‘trial within a trial’

Question 17

Do challenges under s78 involve a voire dire?

Answer 17

No - unless the defence seek to challenge confession evidence obtained by opression or being unreliable

Question 18

How does the prosecution typically fulfil their legal burden of proving admissibility?

Answer 18

they call interviewing officers and custody officers as witnesses and submits the custody records as evidence

Question 19

What actions can the defence take during the voir dire ?

Answer 19

the defence has the opportunity to cross examine the prosecutions witnesses

defendant may choose to testify during the hearing

Question 20

What happens when the confession is deemed inadmissible ?

Answer 20

the jury will be unaware of its existence.

Question 21

What happens if the confession is deemed admissible?

Answer 21

Defendant still retains the right to reiterate their allegations regarding the manner in which the confessions was obtained (this allows them to persuade the jury that their confession carries little evidential weight)

Question 22

Is evidence obtained as a result of an admissible confession?

Answer 22

Section 76(4) and (5) PACE 1984.
allow other incriminating evidence discovered due to an inadmissible confession to be presented, as long as no reference is made to the confession itself.

Question 23

What happens if confessions cannot be obtained without reference to the inadmissible confession ?

Answer 23

if incriminating evidence cannot be presented without reference to inadmissible confession , neither the confession nor the discovered will be admissible.

Question 24

How are mixed statements treated?

Answer 24

the court will admit the whole statement so that the prosecution cannot rely on the incriminating parts, while excluding those parts favourable to the defendant

It is up to the jury to decide whether it is sufficient to prove defendants guilt.

Question 25

Is a confession made by a defendant admissible against a co-defendant?

Answer 25

Any evidence given by a co-defendant at a trial which implicates a defendant will be admissible in evidence against the defendant

Question 26

What is the effect of a PRE-TRIAL confession made by one defendant that implicates another

Answer 26

It will be admissible only against the defendant who makes the confession

Question 26

Will a breach of s58 of Code C - right to legal advice always render the confession admissible?

Answer 26

No. there must be a causal link between the breach and unreliability of the confession that was subsequently made. This is hard to do if they are experienced criminal who is fully aware of their rights when detained at a police station

Question 27

Can a co-defendant rely on the confession made by another defendant

Answer 27

Section 76(1) of PACE 1984 allows a defendant to adduce evidence that a co-defendant has made a confession where both defendants plead not guilty and are tried jointly. \] However, if confession proved to be obtained as a result of oppression, or circs rendering it unreliable - the court must exclude it

Question 28

What is the standard of proof for challenging admissibility of evidence of a co-defendant

Answer 28

Balance of probabilities

Question 29

When does a defendant rely on s78

Answer 29

i) when the defendant admits making a confession but claims that the confession is untrue ii) when the defendant denies making the confession at all

Question 30

When will a defendant rely on s76 PACE

Answer 30

When D accepts that they made the confession

Question 31

In what circumstances will a confession allegedly made by a defendant when outside the police be challenged under s78

Answer 31

When there is a breach of Code C PACE 1984 : a) failing to make an accurate record of the defendants comments b) failing to give the defendant an opportunity to record of their comments and sign this record as being accurate/dispute accuracy of the record c) failing to put this into admission or confession to the defendant at the start of his subsequent interview at the police station

Question 32

What are significant statements?

Answer 32

describes something said by a suspect in the presence and hearing of a police officer or other member of police staff outside a formal police interview takes place - just before or at the time of arrest - on the way to the police station following arrest - whilst at the police station, for example when being booked in to custody or at any time before or after a formal interview

Question 33

What is the process for deciding admissibility of evidence in a magistrates court?

Answer 33

- a ruling as to the admissibility of the disputed concession will normally be sought when the interviewing officer gives evidence - if challenge falls under 76(2) PACE 1984 - mags must hold a voir dire] -

Question 34

what happens if the defendant raises submissions under s76(2) and s78?

Answer 34

- both arguments should be dealt with at the same voir dire

Question 35

Will a voir dire be held in the Mags if defendant is relying solely on s78?

Answer 35

No obligation to. In these cases, challenge to the admissibility of confession left either to the close of the prosecution case or to the end of trial at closing speech of defence

Question 36

What is the procedure for challenging the admissibility of confession evidence

Answer 36

- voir dire (trial within a trial) - if confession made during interview at PS - interviewing officer gives evidence and defendant will then give evidence of their version of events. The audio recording is also likely to be played - if confession made outside police station- the officer to whom confession made gives evidence, so will defendant -Prosecution and defence counsels make submissions to the judge on whether or not the confession should be excluded in the light of evidence given.