#10401 - Confessions And Illegally Or Improperly Obtained Evidence - BPC Criminal Litigation (formerly BPTC) 2024/2025

CONFESSIONS AND ILLEGALLY / IMPROPERLY OBTAINED EVIDENCE

DEFINITION OF CONFESSION

• any statement wholly or partly adverse (when made) to the person who made it, whether made to a person in authority or not and whether made in words of otherwise (s82(1) PACE)

• wholly adverse statement / admission

  • = admissible as evidence of truth of contents

• partly adverse / mixed statement

  • must contain a significant admission of fact on any issue i.e. capable of adding some degree of weight to pros case on an issue relevant to guilt

  • whole statement admissible BUT judge should direct jury that exculpatory parts carry less weight

  • admissible as truth of its contents if tendered by pros

• wholly exculpatory statements

  • if relevant, = admissible only as evidence of D's reaction when first taxed with incriminating facts (the longer since being taxed, the less weight)

ADMISSIBILITY OF CONFESSIONS

• pros can adduce if relevant AND NOT excluded

• only evidence of facts known personally by maker

Can co-D's confession be used against D?

• joint trial

  • if charged for joint offence AND case against D1 based solely on out of court confession, if jury sure of truth of D1's confession, can use findings based on confession (NOT confession itself) to assess D1's guilt / role to determine D2's guilt

• D1's confession incriminating D2

  • general rule:

    • evidence against D1 only

    • BUT whole confession admissible even though incriminates D2

  • exception where admissible against both:

    • if confession made in presence of D2 AND D2 acknowledges incriminating parts so as to make them his own

Accusations in D's presence

• if someone accuses D of crime in his presence evidence of truth of contents of accusation except in so far as D accepts statement to make it his own:

  • can accept by words OR conduct

  • if D NOT cautioned, silence inadmissible unless D and person putting D1's confession to D2 on even terms with D2 (some protest / denial expected)

  • can accept whole OR part of accusation

RESTRICTIONS OF ADMISSIBILITY

PACE s76(2)

• must exclude (unless pros prove BRD that it was not) if confession obtained:

1. by oppression

2. in consequence of something said or done to D which would be likely to render any resulting confession unreliable

• applicability

  • only applies before evidence adduced ("proposes" to give evidence)

1. oppression

   • ordinary meaning; includes torture, inhuman / degrading treatment, use / threat of violence

   • may depend on D's characteristics e.g. mentally ill / intelligent

   • breach of PACE code automatically = oppression

2. unreliability

   • in consequence of thing said or done to D

1. thing said / done = external to D

   • drug withdrawal (done to self)

   • NOT given food / water

   • incentive to confess, inducement

-----AND-----

2. if = breach of PACE code, thing said done = significant and substantial (see below)

-----AND-----

3. causal link between breach and confession

   • likely to render any resulting confession unreliable

     • generic, objective test ask: would any confession made under circumstances tend to be reliable?

     • mental handicap: if confession made without legal representation, almost certainly excluded

s78 PACE (see SGS 6 - confessions and illegally / improperly obtained evidence)

• the discretion

  • s78(1) - 'the court may refuse to allow evidence on which the prosecution propose 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'.

• application

  • applies to pros evidence only

  • only applies before evidence adduced ("intend" to rely)

• when will evidence be excluded

  • Q: can D have a fair trial i.e. is the evidence reliable?

• entrapment

  • test: have police enticed D into committing a crime which that person might otherwise NOT have committed?

    • if Y, can exclude under s78

    • BUT more appropriate remedy = apply to stay as abuse of process

Common law

• judge may exclude if prejudicial effect outweighs probative value

• can only rely on common law if pros have already relied on evidence

• if apply after pros rely, judge can:

1. direct jury to disregard

2. direct jury to matters affecting weight of confession

3. discharge jury

Breaches of PACE codes of practice

• must be significant and substantial to engage s78 OR s76, then apply relevant test

  • failure to caution (unless pros want to adduce answers as lies which would've been given even if cautioned)

  • improper denial of access to solicitor

• NO requirement for bad faith, BUT police bad faith usually enough

• breaches of codes which may be significant and substantial

  • mentally handicapped person interviewed in absence of AA AND / OR solicitor

  • juveniles s76 / 78

    • U17 interviewed in absence of AA

    • AA NOT informed of full role (advise J; facilitate communication with J; ensure interview conducted properly and fairly)

  • verballing s78

    • NOT:

      • making accurate, contemporaneous record of each interview (need NOT be formal interview) OR recording good reason if NOT

      • showing D record of interview and getting to endorse

      • putting significant statement OR silence to D

      • recording comments outside context of interview

  • police trickery s76 / 78

    • inventing evidence to procure confession (BUT NO obligation to disclose all evidence, provided don't mislead D)

    • evidence admissible if:

      • D voluntarily applies self to trick

      • offence already committed and police go undercover to question D

  • unlawful search s78

Procedure for s76 and s78 PACE applications

• must use voir dire:

1. pros evidence

2. defence evidence

1. D not obliged to give evidence, but usually does

2. D CANNOT be XX'd as to truth of confession

3. confession successfully challenged trial continues without evidence

4. challenge fails evidence admitted, jury consider whether s76(2) applies

• judge has discretion to refuse voir dire if only relying s78 to exclude confession, but can be appealed

• CC

  • apply before confession given in evidence

  • if apply after, use common law

• mags'

  • although inappropriate (no separate tribunal of fact), mags' must hold voir dire

  • consider whether substantive hearing should be held by different bench

EFFECTS OF EXCLUDING A CONFESSION

PACE s76

• any facts discovered as a result of an excluded confession are admissible (s76(4)-(6))

• BUT pros CANNOT:

  • prove that the facts were discovered as a result of the confession; OR

  • call in aid any part of confession derived from

PACE s78 / common law

• ordinary principles of relevance apply to any facts discovered as a result of an excluded confession AND can use s78 to exclude

Mental handicap

• if confession made by mentally handicapped D NOT in presence of independent person admissible AND case depends wholly or substantially on it court shall warn jury of special need for caution before relying on it (likely quash otherwise)

CONFESSION ADDUCED BY CO-D

• if D1 makes a...