Evidence - Excluding Confessions Flashcards
(24 cards)
What is the definition of a “confession” under s.82(1) PACE?
A statement wholly or partly adverse to the maker, whether made to a person in authority or not, and whether in words or otherwise.
Includes gestures and mixed statements. Excludes wholly exculpatory statements.
What does s.76(1) PACE say about admissibility of confessions?
A confession is admissible if:
- It is relevant to a matter in issue, and
- It is not excluded under s.76(2) (oppression or unreliability)
What are the two main grounds under s.76(2) for excluding a confession?
(a) Obtained by oppression, or
(b) Obtained through anything said or done likely to render it unreliable in the circumstances
Who must prove the confession was not obtained improperly once s.76 is raised?
The prosecution, beyond reasonable doubt.
How is “oppression” defined under s.76(8) PACE?
Includes torture, inhuman or degrading treatment, and the use or threat of violence, whether or not amounting to torture.
What did R v Fulling [1987] say about the meaning of oppression?
“Oppression” includes unjust or cruel treatment or imposing unjust burdens. The term should be interpreted using its ordinary dictionary meaning.
What is the test under s.76(2)(b) PACE?
Was the confession obtained as a result of something said or done that was likely to render it unreliable in the circumstances?
What are examples of ‘something said or done’ that may render a confession unreliable?
- Promises of release or bail
- Threats to arrest family
- Interviewing vulnerable suspects without appropriate adult
- Denial of legal advice
What are the three steps from R v Barry [1991] to assess unreliability under s.76(2)(b)?
- Identify the thing said or done
- Was it likely to render a confession unreliable in the circumstances?
- Has the prosecution proven the confession was not obtained because of it?
Give 3 case examples of unreliable confessions.
- Trussler: No sleep for 18 hours
- Doolan: Failure to caution
- McGovern: Denied access to legal advice despite vulnerability
What does s.76(4)(a) PACE say about facts discovered from an excluded confession?
Facts discovered as a result of a confession are still admissible, even if the confession itself is excluded.
What safeguard prevents the prosecution from implying a confession was made?
s.76(5) PACE: The prosecution cannot mention the confession unless D (or their representative) gives evidence of how the fact was discovered.
What does s.76(4)(b) PACE say about speech or writing?
Even if a confession is excluded, parts of it are admissible to show how the accused speaks, writes, or expresses themselves.
What did R v Nottle [2004] establish about confession style evidence?
Even if confession was inadmissible, the way D spelled “Jutin” could be admitted under s.76(4)(b) to show how he expresses himself.
What is the test for exclusion under s.78 PACE?
Whether admission of the evidence would have such an adverse effect on fairness that the court ought not to admit it.
Can confessions be excluded under both s.76 and s.78 PACE?
Yes – it is common practice to apply under both. s.78 offers a broader fairness protection even where s.76 is not engaged.
Applying s.78 alongside s.76?
s.78 provides an additional layer of fairness protection, and may exclude confessions even if s.76 unreliability cannot be shown.
What was the ruling in R v Keenan [1990] about s.78?
Confession excluded due to serious breaches of Code C (“verballing”). These deprived D of the chance to refute or correct what was said.
What are the four key practical steps in making an exclusion application?
- Advance notification (via defence statement/skeleton)
- Timing (before or during trial)
- Voir dire (to resolve disputed facts)
- Submissions (oral and/or written)
When should a voir dire be held?
When there are disputed facts relevant to a s.76 challenge.
In Crown Court: held in absence of the jury.
In Mags: heard as preliminary issue.
If a confession is ruled admissible after voir dire, can the defence still challenge it?
Yes – defence may still argue to the jury that the confession is unreliable or untrue.
If the prosecution agrees the breach occurred, is a voir dire still needed?
No – if the facts are agreed, submissions alone are sufficient; the issue becomes a pure question of law.
What is the timing for skeleton arguments in Mags Court and Crown Court?
Mags: Defence argument 10 business days before trial; prosecution response 5 days after
Crown: Judge will set time limits at PTPH or FCMH
What happens if the confession is excluded and it’s the main evidence?
The prosecution may be forced to offer no evidence, resulting in a not guilty verdict.
