What is the definition of confessions under PACE?
Any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not
Includes informal admission to a friend or colleague and whether made in words or otherwise.
According to PACE 1984, s. 76, when is a confession admissible?
Insofar as it is relevant to any issue in the proceedings and is not excluded on the grounds of oppression or unreliability
Only a confession made ‘by’ an accused may be given in evidence ‘against him’.
True or false: A plea of guilty constitutes a confession for purposes of PACE s82.
TRUE
A retracted plea may not be given in evidence by the prosecution due to fairness concerns.
What does ‘whether made in words or otherwise’ imply about confessions?
Confessions may include conduct such as a nod of acceptance or a thumbs-up sign
A visual re-enactment or demonstration constitutes a confession.
What is a mixed statement in the context of confessions?
A statement that is part confession and part exculpation
It is considered a confession for the purposes of the PACE 1984.
Under PACE s76, when may a confession be excluded?
If obtained by oppression or in consequence of something likely to render it unreliable
The prosecution must prove beyond reasonable doubt that the confession was not obtained as such.
Define oppression as per PACE s76(2)(a).
Torture, inhuman or degrading treatment, and the use or threat of violence
Oppression may also include unduly hostile questioning.
What is the relevance of the character and attributes of the accused in determining oppression?
The nature of oppression varies according to the accused’s character
An experienced criminal might expect vigorous interrogation, while a mentally ill person may be subjected to oppressive questioning.
What does PACE s. 76(2)(b) state about unreliability of confessions?
A confession should not be excluded solely because it was obtained through a threat or inducement unless likely to be unreliable
The trial judge must consider whether any confession made in consequence was likely to be rendered unreliable.
What is the burden of proof regarding the admissibility of a confession under PACE?
The prosecution does not have to prove admissibility unless the defence represents it as inadmissible or the court requires proof
If the prosecution cannot prove admissibility, the confession must be excluded.
What may lead to the exclusion of a confession?
- Lack of reliable recording of the interview
- Failing to caution the suspect
- Questioning before access to legal advice
- Improper questioning after charge
Each of these factors can undermine the fairness of the confession.
What does s76A PACE allow the defence to do?
Adduce a confession made by someone other than the accused as evidence of its truth
It creates a statutory exception to the hearsay rule for third-party confessions.
What is the key rule regarding confessions under s76A?
The confession must be made by someone other than the accused and must be likely to be true
The court must exclude the confession unless satisfied of its likelihood of truth.
Under PACE s78, when may the court refuse to allow evidence?
If admission would have an adverse effect on the fairness of the proceedings
The accused has the burden of persuading the court to exercise its power under s. 78.
What are the considerations for s78 regarding breaches?
- Nature and extent of breach
- Breach of right to legal advice
- Breaches of interview procedures
Substantial breaches may indicate fairness standards have not been met.
What is a voir dire?
A preliminary hearing to determine whether confession evidence is admissible
It is held in the absence of the jury to avoid prejudice.
Who must produce the confession for prosecution?
Usually produced through a police officer who witnessed or recorded it
For defence confessions under s.76A, the defendant must produce it at trial.
What happens if the defence does not request a voir dire?
The court can still require one under s.76(3)
This ensures that admissibility issues are addressed.
What counts as a representation under s.76(2)?
A formal statement by defence counsel indicating that the confession may have been improperly obtained
This triggers the court’s obligation to exclude the confession unless proven otherwise.
What is a representation under s.76(2)?
A formal statement by defence counsel indicating that the confession may have been improperly obtained
This representation is based on their documents or instructions.
Does s.78 automatically require a voir dire?
No
In a summary trial, the defence has no automatic right to a voir dire under s.78.
When is a voir dire often used in practice?
When fairness is in question, especially if the accused wants to give limited evidence about a breach
It is convenient to use a voir dire in such situations.
What happens if the same evidence is challenged under s.76?
A voir dire is normally held to resolve both issues together
This allows for a comprehensive examination of the evidence.
