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Confessions"Interview" is defined by Code C as the questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences.
o Could include informal questioning/discussion.
General rule ? confessions are admissible:
-S76(1): A confession IS admissible insofar as it is relevant to any issue in the proceedings; AND is not excluded on the grounds of oppression or in consequence of anything said/done conducive to unreliability.
-The general rule of admissibility extends to operate not only in favour of the prosecution but also for a co-accused (s76A).
What is a confession?
-Defined in s82(1) PACE, "confession" = includes 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'.
-Not limited to statements made to a person in authority (eg police/customs officer): 'confession' also covers statements such as an informal admission to a friend or colleague.
o But, most confessions are made to persons in authority; and such confessions are the most likely to be challenged.
o Where an inducement is made by a person in authority, it is more likely to operate on the accused's mind and lead him to confess.
-It should follow from definition of 'confession' (s82(1) and the provision in s76(1) that only a confession made 'by' an accused may be given in evidence 'against him' ? that where the only proof that the accused made the statement comes from the confession itself it should not be admitted.
o However, Ward, CA: where a passenger in a car gave W's personal details to a police officer when asked for his own, the statement was admissible as a 'confession' by W, who denied being the passenger. It is submitted that it was not a confession 'by' W unless the identity of the maker was shown to be W, which was the very point in dispute. Court considered that a jury should be given a
'clear direction' not to rely on a statement unless they were sure from its contents and surrounding evidence that it was the D
giving an accurate identification. There is still an element of circularity in using the content to identify the maker, and the problem might be circumvented by treating the statement simply as a form of hearsay that might be admitted in the interests of justice under s114 CJA.
o The result of a literal application of the definition was (in
Mawdesley) that a statement disclosing the identity of a driver was admissible as a confession if it could be inferred that the accused had written it, even though it was unsigned.
-Deliberately widely defined: ??Partly & wholly exculpatory statements
Covers not only unequivocal confessions of guilt (i.e. wholly inculpatory statement, eg "It was me. I did it").
o Mixed statements are covered (count as a 'confession'):
-Statements which are partly inculpatory and partly exculpatory,
-eg 'I had nothing to do with it but I was glad to see him die', because they are partly adverse to the maker.
-Whether words amount to at least a partial confession is a question of fact, separate and distinct from the question whether the words in question were spoken at all.
-CA: not everything stated at the time of a partial admission is necessarily part of a 'confession'.
-Sliogeris: a statement made by co-accused A, in which he admitted his presence at the scene of a murder but blamed co-accused B for the killing, was not admissible under s76A
(application to exclude by co-accused C was successful,
whose defence was that B alone committed the crime). The admission of presence, though a partial confession by A,
was not of itself relevant to C's defence, while the allegation that B was guilty was not part of the confession. [[though the statement was admitted under s114 CJA 2003 interests of justice exception]]
o Wholly exculpatory statements clearly do not fall within the definition (eg "It was nothing to do with me").
R v Nottle: A misspelling constituted a confession, where car had been scratched with a misspelt 'Justin' spelt as 'Jutin'; D then, when asked to write down the same message, also spelt the name incorrectly as 'Jutin' ?
taken to be a confession.
Definition Includes a plea of guilty ? constitutes a 'confession' under s82(1).
o Where a guilty plea has been retracted ? the court may decide
(under s78 PACE) that it should not be given in evidence because of the adverse effect on the fairness of proceedings under s78.
o A retracted plea of guilty may, where relevant, also be relied upon as a confession by a co-accused, to which the court's power of discretionary exclusion under s78 PACE does NOT
apply [[because s78 only applies to prosecution evidence]].
o An admission made by accused in other proceedings would also constitute a 'confession' for purposes of PACE; and could be relied upon provided it complies with s76(2), as is likely; and
(more doubtful) whether not excluded under s78. Such evidence would not have been admitted at common law.
NOT included: A 'plea in mitigation' made by counsel on behalf of a client who has been convicted after a not guilty plea ? should NOT be taken as a 'confession' by the convicted person through his counsel. So to regard mitigation would be unjust and unrealistic, as it is counsel's duty to accept the verdict and seek to mitigate the consequences. Same ?must be true if the convicted person advances his mitigation in person
(not through counsel).
Confessions otherwise than in words (by conduct/re-enactments/visual demonstrations)
o S82(1): expression 'whether made in words or otherwise' ?
suggests confession may, as well as written or oral form, include conduct such as a nod of acceptance of an accusation; or a thumbs up sign which may be regarded as a 'statement' in sign language.
o Li Shu-Ling v The Queen, PC: a filmed re-enactment of the crime
D was charged with, with D taking part in the demonstration and giving a running commentary ? counted as 'confession'
(under common law, and would do under s82(1)).
o So re-enactments or visual demonstrations (amounting to
'confessions') have same conditions of admissibility as for oral written confessions
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.
o eg driving away at speed from the scene of accident is NOT a confession to which PACE applies (though evidence of such conduct would be relevant and admissible).
Admissibility of confessions, S76 PACE
(1) In any proceedings a confession made by an accused person
MAY be given in evidence against him in so far as it is
RELEVANT to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.
(2) 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---
(a) by oppression of the person who made it; or
(b) 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,
-the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession
(notwithstanding that it may be true) was not obtained as aforesaid.
(3) In any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, the court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in subsection (2) above.
(4)The fact that a confession is wholly or partly excluded in pursuance of this section shall NOT affect the admissibility in evidence---
(a) of any facts discovered as a result of the confession; or (b) where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, of so much of the confession as is necessary to show that he does so.
(5) Evidence that a fact to which this subsection applies was discovered as a result of a statement made by an accused person shall not be admissible unless evidence of how it was discovered is given by him or on his behalf.
(6) Subsection (5) above applies---
(a) to any fact discovered as a result of a confession which is wholly excluded in pursuance of this section; and
(b) to any fact discovered as a result of a confession which is partly so excluded, if the fact is discovered as a result of the excluded part of the confession.
(7) Nothing in Part VII of this Act shall prejudice the admissibility of a confession made by an accused person.
(8) In this section "oppression" includes torture, inhuman or degrading treatment, and the use or threat of violence
(whether or not amounting to torture).
S76:?S76 is NOT intended as a mechanism for regulating the admissibility of a confession made by one co-accused as evidence for another: ?
that is covered by s76A Pace, regulation of admission of the confession of a co-accused as defence evidence.
So s76 applies to regulate admission of confessions as PROSECUTION
EVIDENCE not as defence evidence for a co-accused.
A confession may be excluded in part
NB, s76 does not automatically come into play to challenge confessions ?
-prosecution only need to prove admissibility of a confession if either
(a)defence represent that it is inadmissible under s76(2)
-Re what is a "representation": includes a statement by responsible counsel, on the basis of documents or proofs of evidence in his possession at the time of speaking,
that the confession was/may have been obtained in breach of s76.
o OR (b) court of its own motion requires proof of admissibility
-it only operates where 'it is represented to the court' by the defence that s76(2)(a) or (b) applies.
-But, where there is no defence challenge, under s76(3) the court itself can require the prosecution to prove that the confession was not obtained as set out in s76(2)(a) or (b).
-If prosecution is required to prove, and doesn't beyond reasonable doubt ? the confession must be excluded, no discretion.
-Court should be particularly vigilant to scrutinise a confession that is the sole evidence relied on by prosecution
-A confession which is inadmissible in crim proceedings under s76,
should not be used as the basis for a formal caution So 2 MAIN WAYS under S76 to challenge a confession:
-(1) under s76(2)(a) 'oppression'
-(2) under s76(2)(b): 'anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made him in consequence thereof'.
Limb 1, exclusion for 'oppression' (s76(2)(a))??
S76(2)9a): where represented to court that confession was or may have ben obtained by oppression of the person who made it ? then court shall not allow the confession to be given in evidence against him except insofar as prosecution prove to court beyond reasonable doubt that confession was not obtained as aforesaid (notwithstanding that it may be true)
"oppression widely defined in s76(8), includes: torture, IDT; or use/threat of violence (whether or not amounting to torture).
o Reflects wording in Art 3 ECHR (also prohibits torture and IDT).
Reference may be made to case law under Art 3.
o Reference to 'torture' may be interpreted in light of offence of torture in s134 CJA 1988.
'oppression' should be given ordinary/natural meaning of language dictionary meaning (R v Fulling, CA)
o the Act does not follow the wording of earlier rules/decisions :
'oppression' should be interpreted by ascertaining natural meaning of language, uninfluenced by considerations from previous state of the law.
o 'the OED 3rd definition of the word: "exercise of authority or power in a burdensome, harsh, or wrongful manner; unjust or cruel treatment of subjects, inferiors etc, or the imposition of unreasonable or unjust burdens"
o ......."there is not a word in our language which expresses more detestable wickedness than oppression.
Oppression almost inevitably involves some impropriety on the part of the interrogator'.
o But it does not follow that all impropriety necessarily involves oppression (not all wrongful acts, including breaches of Codes,
could be termed oppressive).
o Police officer raising voice and using bad language in interview is not oppressive; though unduly hostile questioning may be oppressive; is a question of degree.
o Where accused had been 'bullied and hectored' in interview: CA:
short of physical violence, it was hard to conceive of a more hostile and intimidating approach by officers to a suspect. Interview was oppressive.
o But similar tactics in L were acceptable. ??Where there is impropriety which falls short of 'oppression' ? such impropriety might support an argument for exclusion of confession under s76(2)(b) or s78.
o Eg, access to legal advice improperly denied ? could be oppressive, but more likely a s78 application is appropriate.
o Exclusion for 'oppression' is reserved for rare cases where an an accused has been subject to misconduct of a deliberate &
serious nature: and where the court is anxious to mark its disquiet at the methods employed.
Common issue - extent to which the use of similar methods by the same officer in relation to other suspects may figure in XX: in relation to oppression, the court's natural reluctance to exclude on this basis may be overcome by the use of such evidence. Police witnesses might be XXed as to whether they were part of a 'culture' of pressurising witnesses improperly.
o Twitchell, CA: considered that officers alleged to have tortured D
could have been XXed to potentially devastating effect had the subsequent findings of a court regarding a similar torture by the same officers on another man been available for use in XX.
Once defence represents that confession due to oppression or court chooses to act of its own motion (s76(3)) ? prosecution must prove beyond reasonable doubt that it was not so obtained.
o If prosecution cannot prove this ? then confession must be excluded, inadmissible evidence, even if the confession may have been true.
If judge satisfied beyond reasonable doubt that the confession was not obtained by oppression (and is thus admissible) ? defence can still,
during the trial, seek to discredit the same evidence by XX and making reference to it in closing speech (i.e. that it was obtained by oppression and thus unreliable)
o Would be for jury to decide for themselves whether to rely on the alleged confession or not.
Limb 2, exclusion for unreliability (s76(2)(b)?
Follows Crim Law Revision Committee 11th Report: conviction should be excluded no only on basis of obtained by threat/inducement (now
'anything said or done'). But only if circumstances were such that any resulting confession would be likely unreliable.
S76(2)(b): (a) where it is represented to court that (b) the confession was or may have been obtained in consequence of anything said or done (c)
which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof
? (d) the court shall not allow the confession to be given in evidence against him
(e) except insofar as the prosecution proves to court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid. ?
HOW TO APPROACH S76(2)(B) cases, CA, R v Barry: Where D alleges that confession was unreliable, approach is:
a) First step: identify the thing said or done, which requires the trial judge to take into account everything said and done by the police.
b) Second step ? ask whether what was said and done was likely, in the circumstances, to render unreliable a confession made in consequence. The test is objective, taking into account all the circumstances.
c) Last step: ask whether the prosecution has proved beyond reasonable doubt that the confession was not obtained in consequence of the thing said and done ? a question of fact to be approached in a common sense way.
A: Step 1, Identify the thing said or done
-Numerous egs of what the thing said/done can be.
-Judge must consider everything said or done (usually by the police),
and not confine himself to a narrow analysis analogous to offer and acceptance in contract law.
-Doses not necessarily require impropriety on behalf of the police to exclude confession for unreliability:
o Judge must consider 'anything said or done' and all the surrounding circumstances ? so a confession may be inadmissible notwithstanding that the police have not behaved improperly.
o So can have exclusion of a confession under s76(2)(b) even if there is no impropriety.
o Eg Harvey: a psychopathically disordered woman of low normal intelligence heard her lover confess to a murder; this may have led to her make a false confession out of a child-like desire to protect her lover; her statement was excluded.
o In M, it was M's own solicitor who rendered the confession unreliable by intervening in the interview in an apparent attempt to secure a confession.
o CA: where solicitor providers proper legal advice to his client, this will not normally be a basis for excluding a confession.
o Roberts: promise by a shop manager not to involve the police that gave rise to unreliability.
-Can be positive acts, eg a promise, inducement or trick, or threat.
o Eg, a promise to release someone promptly from police custody if only if they 'tell all'.
o A promise of bail from the police station conditional on a full and frank confession
A threat to arrest a suspect's partner or other family members if suspect does not 'cooperate'.
-Can be an omission or failure to act (eg an omission to fulfil the requirements of Code)
o Eg interviewing a young or mentally vulnerable suspect without an appropriate adult.
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