Excluding confession - s.76 & s.78

Question 1

What is a confession and what falls in its definition?

Answer 1

Any statements wholly or partly adverse to person who made it, whether made to a person in authority or not and whether made in words or otherwise.
Included:
* unequivocal confessions of guilt - “i did it”
* mixed statements
* depending on context, nod, sign or gesture can be sufficient

Wholly exculpatory statements such as “it had nothing to do with me”, does not fall within confession

PACE sets definition out

Question 2

Admissibility of confession under s.76

Answer 2

If confession was or may have been obtained:
* by oppression of the person who made it or
* in consequence of anything said or done which was likely, in circumstances existing at the time, to render unreliable any confession which might be made by him in consequence,
court shall not allow onfession to be given in evidence
- courts may allow prosecution to prove the confession was not obtained as mentioned

Question 3

When does s.76 apply?

Answer 3

When represented to the court by the defence - even with no defence challenges, court itself can require prosecution to prove confession was not obatained as set out.

Question 4

What does limb 1: exclusion of oppression mean?

S.76(2)(a)

Answer 4

Where confession was or may have been obtained by oppression of person who made it - in so far, prosecution proves to court beyond reasonable doubts that confession was not obtained by oppression.
* if proven unsuccessfully by prosecution, confession must be excluded but
* if proven successfully by prosecution, discrediting confession by defence can still be made by cross-examination but up to jury to decide whether to rely on alleged confession or not

Oppression includes tortue, inhuman or degrading treatment and the use or threat of violence

Oppression must have caused confession (casual link)

e.g., shouting at suspect, overly repeating questions, constantly interuppting them and false suggestion of evidence, beyond reasonable force

Question 5

What does limb 2: exclusion for unreliability mean?

S.76(2)(b)

Answer 5

Where D alleges confession is unreliable, correct approach is:
1. identify the thing said or done
2. to ask if whether what was said or done was likely in circumstances to render unreliable a confession made in consequence
3. to ask whether prosecution has proved beyond reasonable doubt that confession was not obtained in consequence of the thing said or done

Question 6

1. How do you identify the thing said or done?

Answer 6

• can be a positive act, omission or failure to act
• it needs to be something that induces suspect to do something. e.g., a suspect making an admission because they believe it’s likely to get them bail cannot be relied on.
  Examples are:
• promise to release someone promptly from custody only if “tell”
• promise of bail from police station on a full frank confession
• threat to arrest suspect’s partner or other family members if suspect does not cooperate

Once identified, then defence must submit what was said or done was itself a breach of Codes

omission: failing to provide solicitor at request

Question 7

2. How do you know whether something said or done in circumstances would render unreliable a confession made in consequence?

Answer 7

• court does not consider the reliability of confession which was made but must decide whether there is likelihood that any confession would be unreliable in the circumstances prevailing at the time

Question 8

How do you test unreliability?

Answer 8

Unreliable: cannot be relied up as being the truth
* objective test - doesn’t matter if police acted in good faith or whether they know, what matters is the conditions under which the confession was obtained means its unreliable

Question 9

3. Whether the prosecution has proved beyond reasonable doubt that the confession was not obtained?

Answer 9

Once defence has argued that the confession was or may have been obtained by anything said or done which was likely in the circumstances to render any confession unreliable, court shall not allow confession to be given against them except in so far prosecution proves to court beyond reasonable doubt that confession was not obtained as aforesaid.

Question 10

What happens in cases of evidence that was discovered as a result of exclude confession?

Answer 10

Confession wholly or partly excluded shall not affect admissibility in evidence
a) of any facts discovered as result of confession or
b) where confession is relevant as showing that accused speaks, writes or expresses himself in a particular way

Question 11

What does facts discovered mean?

Answer 11

• facts discovered as a result of confession can be relies upon in evidence
• however, in these circumstances, it would not be open to prosecutors to suggest that body was discovered by reason of something said by D - as thing would circumvent exclusion.

Question 12

The speech, writing or expression of the accused?

Answer 12

Concerns situtaions where, even though words of confession has been excluded, prosecution can use such parts of confession as is necessary to show accused speaks, writes or expresses himself in a particular way.

Question 13

What is the test for s.78 excluding evidence which also applies to confession?

Answer 13

Having regards to all circumstances (incl. how evidence was obtained), admission of evidence would have such an adverse effect on fairness of proceedings that court ought not to admit it
* breach must be significant and substantial
* defence is held on the balance of probabilities to prove adverse effect on fairness - no need to show casual link like s.76
* even if court disagrees, defence can still bring out argument in trial up to jury to weigh the confession.

Question 14

Can an application to exclude confessions be made under s.76 then s.78 as an alternative?

Answer 14

Yes, held that s.78 acts as a broader protective sweep than s.76 therefore acting as a override protection for detainee
* where s.76 fails, s.78 intervenes to exclude confession due to fairness as s.78 incorporates broader considerations such as ECHR.

S.76 = if proven unsuccessfully, MUST be excluded but for S.78 = DISCRETIONARY on part of courts