Confession evidence

Question 1

what is the definition of confession evidence and when is it admissible?

Answer 1

any statement which is wholly or partly adverse to the person who made it

it will be admissible if it proves guilt

Question 2

what is a mixed statement and its position regarding admissibility?

Answer 2

Mixed statement contained confession + element favourable to D

the whole statement admissible

Question 3

explain the admissibility of hearsay evidence where is it made by a co-D

Answer 3

• Co-D confession pre-trial implicating D = admissible hearsay against co-D and not D
• Co-D confession at trial implicating D = admissible hearsay against co-D + D
• Co-D plead G and now giving evidence for P = admissible against D

Question 4

on what statutory basis can confession evidence be challenged?

Answer 4

s76(2) PACE 1984
s78 PACE 1984

Question 5

explain s76(2) PACE 1984

Answer 5

the court must not admit confession evidence obtained:

a) by oppression; or
b) where anything may render it unreliable (i.e. breach of COP)

unless P can prove BARD it was not obtained in this way

Question 6

what is the difference between s76(2) PACE and s78 PACE 1984?

Answer 6

s76(2) is in relation to confession evidence only whereas s78 can be used in relation to any P evidence

Question 7

give examples of circumstances which might render a confession unreliable (10)

Answer 7

 Denying refreshments/breaks and D not in a fit state to answer/wants to leave the station asap to obtain food
 Inducement/threats to confess
 Misrepresenting strength of P case
 Inappropriate questioning
 D not in a fit state to be interviewed inc. intoxicated
 failure to accurately record what was said
 failure to provide an AA
 failure to caution
 inappropriate interjections from AA/solicitor
 Possibly if denied legal advice – would D have confessed if solicitor present?

Question 8

if s76(2) applies, can D rely on a co-D confession?

Answer 8

D cannot rely on co-D’s confession if s76(2) applies to it, unless D can prove on BOP it wasn’t obtained in this way

Question 9

what is the position regarding the evidence when evidence is struck out?

Answer 9

if excluded, P can still rely on facts but not state where they came from

Question 10

under s76(2)(a), what does oppression include (inc. case law)?

Answer 10

torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture)

the COA have said this can include:
 the exercise of authority in a burdensome, harsh of wrongful manner
 unjust or cruel treatment
 imposing unreasonable/unjust burdens
 being bullied into making a confession

questioning which affects the mind of the subject that his will crumbles and he speaks when otherwise he would have stayed silent

Question 11

if D is relying on s78 to have confession evidence excluded, what circumstances might render it unfair to admit the confession evidence?

Answer 11

this typically applies when a confession is made outside of the interview:
 Failure to take accurate/contemporaneous note of D’s comment
 Failure to give D opportunity to view, sign or dispute record
 Failure to put confession to D at the start of the interview

Question 12

when making an application under s78, what are the points to consider?

Answer 12

1. why the evidence would have any adverse effect on the proceedings?
2. whether the evidence was obtained in bad faith (i.e. breach of procedural requirement)
3. whether the breach was significant/substantial