This website uses cookies to ensure you get the best experience on our website. Learn more

BPTC Law Notes Criminal Evidence Notes

Confessions And Unlawfully Obtained Evidence Notes

Updated Confessions And Unlawfully Obtained Evidence Notes

Criminal Evidence Notes

Criminal Evidence

Approximately 176 pages

A collection of the best BPTC notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through twenty-four samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor".

These notes were prepared in a highly visual style, using flow-charts, questions and answer boxes, miniature mind maps and more. Highly concise, these notes pack more i...

The following is a more accessible plain text extract of the PDF sample above, taken from our Criminal Evidence Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

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

Definition of ‘Confession’

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’

Exclusion for Oppression: PACE 1984, s.76(2)(a)

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

Exclusion for Unreliability: s.76(2)(b)

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...

Buy the full version of these notes or essay plans and more in our Criminal Evidence Notes.