BPTC Law Notes Criminal Evidence Notes
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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...
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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...
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