#15435 - Confessions And Unlawfully Obtained Evidence - BPC Criminal Evidence

Syllabus 16: Confessions and Unlawfully Obtained Evidence

Confessions are admissible insofar as it is relevant to any issue in the proceedings, and is not excluded on s.76 or s.78 grounds

Three grounds for excluding confession evidence

• Obtained by oppression (s.76(2)(a))

• Unreliable in the circumstances (s.76(2)(b))

• Adverse effect on fairness of proceedings (s.78)

• Note: exclusion under s.76 is mandatory if the requirements are met out

• Confessions can be excluded in part

Exclusion under s.76 applies in relation to Prosecution only

• Burden on proof is on P to prove beyond reasonable doubt

• Burden arises only in 2 situations

  • Where defence raises inadmissibility per s.76(2)(a) or (b)

  • Where court on its on volition requires such prove, per s.76(3)

Court can also exclude evidence under its common law powers, as preserved by s.82(3)

• i.e. even if confession passes ss.76 and 78 test, court can still exercise its discretion to exclude the confession

• Exclusion of confession evidence at common law was recognised in two contexts:

  • Exclusion of unreliable confessions, the prejudicial effect of which could be said to outweigh their true probative value

  • Exclusion of confession evidence, the admissibly of which may operate unfairly against the accused

• Exclusion operates unfairly against accused

  • Where it is obtained by improper or unfair means: Sang [1980] AC 402

  • Where it is obtained in an oppressive manner by force or against the wishes of an accused, or by a trick or by conduct of which the Court ought not to take advantage: Houghton (1978) 68 Cr App R 197

• Use of common law exclusion powers exceedingly rare given wide ambit of s.78

PACE 1984, s.82: 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

Statement disclosing identity of a driver was admissible as a confession if it could be inferred that the accused had written it

Guilty plea is a confession

• Retracted guilty plea may also be relied upon as a confession by a co-accused

While confessions can be in the form of conduct other than words, such conduct which is not intended to convey guilt, but which may be interpreted as doing so, is not a ‘statement’ and hence not a confession

Mixed statements are confessions

• Not everything stated at the time a partial admission is necessarily part of a ‘confession’

s.76(2)(a): confession evidence must be excluded ‘if, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained by oppression of the person who made it’

‘Oppression’ defined in s.76(8): includes torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture)

• Fulling [1987] QB 426: oppression is to be given its ordinary dictionary meaning of ‘exercise of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of subjects, inferiors etc; the imposition of unreasonable or unjust burden’

  • CA also noted that ‘there is not a word in our language that expresses more detestable wickedness than oppression’

Unduly hostile questioning may amount to oppression: it is a question of degree

• In Paris (1993) 97 Cr App R 99, bullying and hectoring the accused during interview amounted to oppression

• But in Emmerson (1991) 92 Cr App R 284, raising voice and swearing did not amount to oppression

• Note: a degree of impropriety which is insufficient for oppression may sever to support an argument that the confessions should be excluded under s.76(2)(b) or s.78

s.76(2)(b): confession evidence must be excluded ‘if, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained in consequence of 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’

Statutory test is a hypothetical one: whether any confession which the accused might have made in consequence of what twas said or done was likely to be rendered unreliable

• Not whether this confession would rendered unreliable

Judge should not be influenced by evidence that the confession is true in deciding admissibility

Impropriety is not a prerequisite for exclusion under s.78(2)(b)

Confession cannot be rendered unreliable by something said or done by accused himself; an external force is required

• e.g. heroin addict’s confession in order to get out of jail to feed his cravings

• But this circumstance may be relevant under s.78

Breaches of PACE Code of Conduct do not, in themselves, lead to automatic exclusion of a confession

• But it may, or its own, or together with other factors, provide evidence that s.76(2)(b) has not been complied with

• No burden of proof on P, unlike s.76

s.78(1): In any proceedings the court may refuse to allow evidence on which the prosecution proposes 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.

Similar to s.76, breaches of Code of Practice do not automatically render confession evidence inadmissible

• But such breaches are an important factor in considering whether to exclude evidence

CA in Samuel [1988] QB 615 noted that it is undesirable to give any general guidance on exercising s.78 discretion because the situations may vary

But following factors are relevant in exercising s.78 discretion

• Nature and extent of breach

  • Whether significant and substantial

  • A breach may be more than technical, but if the particular circumstances of the case does not indicate unfairness arising from the breach, evidence may be admitted

• Breach of right to legal advice, which is regarded as a fundamental right

  • Waiver of legal advice should be voluntary, informed and unequivocal: McGowan v B [2011] 1 WLR 3121

  • Minor defects in the communication of the right to legal advice that do not bear on the exercise of informed choice by the suspect cannot give rise to unfairness: Beeres v CPS [2014] EWHC 283 (Admin)

• Breach of interview procedures

  • Breach of Code C on how to conduct interviews tend to (but do not automatically give rise to) lead to exclusion of evidence

  • e.g. failure to caution; breach of right to have an appropriate adult present at interview

  • Officer’s failure to realise that witness is a suspect rather than a mere witness is immaterial

• Note: key question is the effect of the above on the fairness of the proceedings, and not the breach per se

In relation to s.76

• s.76(2): where defence represent that a confession on which P propose to rely on was, or may have been, obtained in such a way as to render it inadmissible in evidence,...