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CONFESSIONS. WHAT IS A CONFESSION? (PACE s.82(1)) It is a statement which is wholly or partly adverse to its maker (it need not be made to a person in.

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Presentation on theme: "CONFESSIONS. WHAT IS A CONFESSION? (PACE s.82(1)) It is a statement which is wholly or partly adverse to its maker (it need not be made to a person in."— Presentation transcript:

1 CONFESSIONS

2 WHAT IS A CONFESSION? (PACE s.82(1)) It is a statement which is wholly or partly adverse to its maker (it need not be made to a person in authority and need not be made in words) A statement which is wholly adverse to its maker (wholly inculpatory) is a confession A statement which is partly adverse to its maker but is partly in his favour (a mixed statement) is also a confession. A statement which is wholly in its maker’s favour (wholly exculpatory) at the time when he makes it is not a confession even if it subsequently becomes adverse

3 When questioned by the police, Julie admits that she killed Alice. Which one is true? [a] The statement is a confession [b] The statement is not a confession

4 ANSWERS [a] The statement is a confession [b] The statement is not a confession [a] is true.

5 When questioned by the police, James denies that he killed Imran but admits that he was present when Imran was shot. Which one is true? [a] The statement is a confession [b] The statement is not a confession

6 ANSWERS [a] The statement is a confession [b] The statement is not a confession [a] is true.

7 When questioned by the police concerning the theft of a diamond ring, Shirley denies any involvement in the theft and claims that she was at home in bed when the ring was stolen from Brian’s shop. Which one is true? [a] The statement is a confession [b] The statement is not a confession

8 ANSWERS [a] The statement is a confession [b] The statement is not a confession [b] is true.

9 ADMISSIBILITY A confession which is tendered as evidence of the matters stated is a hearsay statement but may be admissible under the hearsay exception created by PACE s.76(1)

10 PACE s.76(1) “In any [criminal] 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”. [Note that the provisions of the CJA 2003 (which concern the admissibility of hearsay evidence in criminal proceedings do not make confessions made by the accused admissible if they would not be admissible under s.76 or s.76A of PACE (CJA 2003 s.128(2)).]

11 When questioned by the police, Julie admits that she killed Alice. The prosecution intend to rely on the statement at Julie’s trial for Alice’s murder to prove that she killed Alice. Which is/are true? (i) The statement is a confession (ii) The statement is a hearsay statement (iii) The statement may be admissible under PACE s.76(1)

12 ANSWERS (i)The statement is a confession (ii)The statement is a hearsay statement (iii)The statement may be admissible under PACE s.76(1) They are all true

13 CONFESSIONS IMPLICATING OTHERS Essentially, a confession is only admissible in evidence against its maker (section 76(1)) It may also be admissible against a person who adopted it (i.e. where A’s confession implicates B and B confesses that what A said is true) A confession made by an agent (e.g. a barrister) acting within the scope of his is authority may be admissible against his client Where this is relevant, a jury may take into account there finding as to the guilt of D1 when deciding whether D2 is also guilty even though the only evidence of D1’s guilt was his confession

14 i When questioned by the police, Wilf admits that he and Paul burgled Nayon’s house. When Paul is questioned by the police he denies that he burgled Nayon’s house and claims that Wilf’s assertion that he (Paul) was involved is untrue. They are both charged with burglary. Which is/are true? (i) Wilf’s statement is admissible under PACE s.76(1) to prove that Wilf burgled Nayon’s house (ii) Wilf’s statement is admissible under PACE s.76(1) to prove that Paul burgled Nayon’s house

15 ANSWERS (i) Wilf’s statement is admissible under PACE s.76(1) to prove that Wilf burgled Nayon’s house (ii) Wilf’s statement is admissible under PACE s.76(1) to prove that Paul burgled Nayon’s house (i) is true

16 i A and B are charged with arson. The prosecution assert that A paid B to burn down C’s factory. B confesses to the police that he set fire to the factory acting upon A’s instructions. At the trial, both A and B plead not guilty, and B’s confession is admitted in evidence. Which is/are true? (i)B’s confession is admissible against A under PACE s.76(1) (ii)If the jury decide that B is guilty they may take this finding into account when deciding whether A is guilty

17 ANSWERS (i)B’s confession is admissible against A under PACE s.76(1) (ii)If the jury decide that B is guilty they may take this finding into account when deciding whether A is guilty (ii) is true

18 CONFESSIONS MADE BY THIRD PARTIES A confession made by a person who is not a party to criminal proceedings (i.e. a confession which was not made by the accused) is not admissible under section 76(1). [Perhaps it may be admissible under some other hearsay exception as the CJA 2003 s.128(2) restriction, referred to above, only applies to a confession made by a defendant.]

19 i Hamish is charged with the murder of Alex. Ramesh had previously confessed to the police that he murdered Alex but the police did not believe Ramesh and he was not charged. Which is/are true? (i)Ramesh’s confession is admissible for Hamish under PACE s.76(1) (ii)Ramesh’s confession may possibly be admitted for Hamish under CJA (1)(d)

20 ANSWERS (i)Ramesh’s confession is admissible for Hamish under PACE s.76(1) (ii)Ramesh’s confession may possibly be admitted for Hamish under CJA (1)(d) (ii) is true

21 STATEMENTS OF OPINION AS CONFESSIONS A confession in the form of a statement of opinion upon a matter requiring expertise will only be of evidential value if its maker possesses the expertise to make his opinion in relation to the relevant matter of value

22 When questioned by the police, John admits that the substance that was found in his possession was cocaine. He claims that he found it in his friend’s flat and knew that it was cocaine because he used some of it and experienced its effects. This was the first occasion on which John had ever used or come into contact with drugs. The prosecution do not intend to adduce any other evidence to prove that the substance found in John’s possession was cocaine. True or false? The confession is clearly cogent evidence that the substance was cocaine

23 ANSWERS The confession is clearly cogent evidence that the substance was cocaine False

24 CONFESSIONS BASED ON HEARSAY STATEMENTS Essentially, a confession is not admissible as evidence of facts of which its maker only had hearsay knowledge Such evidence may be admissible to prove other matters (such as its maker’s beliefs or dishonesty) Presumably a confession may prove or be proved by a hearsay statement if the requirements of CJA 2003 s.121 and those of PACE s.76 (or those of s.76A, which are considered below) are satisfied.

25 Ian is suspected of handling a DVD player that he received from Mahendra. When questioned by the police, Ian admits that when he received the DVD player he believed that it was stolen because Mahendra told him that it was. The prosecution possess no other evidence to prove that the DVD player was stolen. True/false? Ian’s confession may possibly be admissible under PACE s.76(1) to prove that the DVD player was stolen if Mahendra’s statement is admitted under CJA s.114(1)(d) and the judge exercises his discretion under CJA 2003 s.121

26 ANSWERS Ian’s confession may possibly be admissible under PACE s.76(1) to prove that the DVD player was stolen if Mahendra’s statement is admitted under CJA s.114(1)(d) and the judge exercises his discretion under CJA 2003 s.121 True

27 EXCLUSION OF CONFESSIONS UNDER PACE s. 76(2) The admissibility of a confession under s.76(2) may be raised by the defence or (per s.76(3)) by the court of its own motion. Where the admissibility of a confession under section 76(2) of PACE is in issue, this will normally be determined on the voir dire (a trial within a trial). Essentially, where a confession is excluded under s.76(2) the jury will not hear about it (though see s.76A below). Where the judge admits a confession the jury may still decide that it is not true.

28 Where the accused denies that he confessed If the defence do not assert that a confession should be excluded under s.76(2) (or in the exercise of the court’s exclusionary discretion under s.78, which is considered below) but merely assert that the accused did not make the confession, the issue is one for the jury to determine

29 Colin is charged with murder. The prosecution adduce in evidence a confession allegedly made by Colin. Colin denies that he confessed and claims that the voice on the tape recording is not his. Which is/are true? (i) The matter is one for the judge to be consider on the voir dire and the jury must not be made aware of the confession if there is evidence that Colin did not make it (ii) If the judge admits the confession the jury must presume that Colin made it.

30 ANSWERS (i)The matter is one for the judge to be consider on the voir dire and the jury must not be made aware of the confession if there is evidence that Colin did not make it (ii)If the judge admits the confession the jury must presume that Colin made it. They are both false

31 SECTION 76(2)(a) (OPPRESSION) “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… 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.”

32 NATURE OF OPPRESSION Oppression includes (PACE s.76(8)) “…torture, inhuman or degrading treatment and the use or threat of violence (whether or not amounting to torture)”, and it is also necessary to consider the ordinary dictionary definition of “oppression”, suggesting that oppression requires improper conduct (i.e. “wrongful”, “burdensome”, “harsh” or “cruel”), e.g. “heavy handed questioning” (R v Fulling)

33 When questioned by the police Anita consistently denied that she committed the robbery of which she was suspected whilst the interviewing officers persistently screamed abuse at her for several hours and refused to give her any refreshments or access to legal advice until she confessed. Eventually, Anita confessed that she committed the robbery, and was charged. Which is/are true? (i) The confession is not admissible because it is not relevant to an issue in the proceedings. (ii) The confession will not be admissible if Anita proves on the balance of probabilities that it was obtained by oppression

34 ANSWERS (i)The confession is not admissible because it is not relevant to an issue in the proceedings. (ii)The confession will not be admissible if Anita proves on the balance of probabilities that it was obtained by oppression They are both false.

35 OPPRESSION AND THE “CAUSAL LINK” The existence of oppression does not render a confession inadmissible if the confession was not obtained by oppression (which may depend upon the accused’s personal characteristics) i.e. even where, in the context of an assertion of oppression, the prosecution cannot prove beyond reasonable doubt that the accused was not subjected to oppression, his confession will still be admissible if the prosecution can prove beyond reasonable doubt that the confession was not obtained in consequence of the oppression

36 i Sid, a heavyweight boxer, is questioned by the police in the presence of his solicitor concerning the murder of Dan. After 30 minutes DI Jones, frustrated by Sid’s lack of cooperation, slaps Sid’s face once. Sid merely laughs and continues to deny his involvement in the murder. Several hours later, after the police have disclosed further evidence to Sid, Sid confesses on his solicitor’s advice. Which is/are true? Section 76(2)(a) of PACE does not appear to render the confession inadmissible because: (i)the slap does not amount to oppression; (ii)the confession does not appear to have been obtained because of the slap

37 ANSWERS Section 76(2)(a) of PACE does not appear to render the confession inadmissible because: (i)the slap does not amount to oppression; (ii)the confession does not appear to have been obtained because of the slap (ii)is true

38 OPPRESSION AND SUBSEQUENT INTERVIEWS Oppression during one interview may render a confession obtained during a subsequent interview inadmissible even though the subsequent interview was conducted properly;

39 i When questioned by the police Anita consistently denies that she committed the robbery of which she is suspected whilst the interviewing officers persistently scream abuse at her for several hours and refuse to give her any refreshments or access to legal advice until she confesses. Eventually, Anita confesses. Subsequently, two different police officers re-interview Anita in the presence of her solicitor. The interview is conducted properly and Anita confesses that she committed the robbery Which is/are true (i) The first confession must be admissible. (ii) The second confession must be admissible.

40 ANSWERS (i)The first confession must be admissible. (ii)The second confession must be admissible. They are both false

41 Section 76(2)(b) (UNRELIABILITY) “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—… “(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.”

42 UNRELIABILITY No statutory definition of unreliability It appears that improper conduct is not required Unreliability must not be self-induced (i.e something must be said or done to the accused (but not necessarily by the police); i.e. the thing said or done cannot be his own mental or physical state or things said or done by him or on his behalf

43 UNRELIABILITY (CONT) The circumstances existing at the time (including the accused’s personal characteristics) are crucial The question for the judge is not whether the confession is true or false, the truth or falsehood of the confession being a question for the jury if the confession is admitted Rather, the issue for the court is the likelihood that such a confession as the accused made would be rendered unreliable in the circumstances in consequence of the thing said or done

44 Liz is being questioned by the police in relation to a shoplifting incident in which she is allegedly involved. Liz consistently denies the allegations against her until another police officer comes into the interview room and (truthfully) informs Liz that her house is on fire and her son is still inside. Liz’s solicitor tells Liz that if she confesses she will probably be allowed to go home. Liz immediately confesses. Which is/are true? (i) The confession was obtained by oppression (ii) The confession may be inadmissible under PACE s.76(2)(b) unless the prosecution prove that the confession was not obtained in consequence of the things said by the police and the solicitor

45 ANSWERS (i)The confession was obtained by oppression (ii)The confession may be inadmissible under PACE s.76(2)(b) unless the prosecution prove that the confession was not obtained in consequence of the things said by the police and the solicitor (ii) is true

46 Horace, being suspected of shoplifting, is questioned by the police. Horace, who is a member of a village cricket team, wants to play in a cup final which his team are participating in that evening. Horace assumes that he will be allowed to go home if he confesses and so he confesses. True/false? The confession will not be admissible because it is clearly unreliable

47 ANSWERS The confession will not be admissible because it is clearly unreliable The proposition is false

48 UNRELIABILITY AND THE “CAUSAL LINK” The fact that something was said or done etc does not render a confession inadmissible if the confession was not obtained in consequence of the thing which was said or done I.e. even if the prosecution cannot prove beyond reasonable doubt that nothing was said or done etc, the accused’s confession will still be admissible if the prosecution can prove beyond reasonable doubt that the confession was not obtained in consequence of the thing that was said or done etc

49 Alice, being suspected of murder, is questioned by the police and consistently denies the allegations against her until another police officer comes into the interview room and (truthfully) tells Alice that her mother is very ill. The officer tells Alice that if she confesses she will be allowed to go immediately. Alice continues to deny the allegations until, several hours later, the police disclose further evidence against her and her solicitor advises her to confess, at which point she confesses. True/false The confession must be inadmissible under PACE s.76(2)(b)

50 ANSWERS The confession must be inadmissible under PACE s.76(2)(b) False

51 UNRELIABILITY AND SUBSEQUENT INTERVIEWS Things said or done during one interview may render a confession obtained during a subsequent interview inadmissible even though the subsequent interview was conducted properly

52 Sue, a woman of low IQ, is questioned by the police in the absence of her solicitor in relation to burglary. A police officer tells Sue that if she confesses, because she is of low IQ, she probably won’t go to prison but that if she doesn’t confess she will go to prison. Sue confesses. Subsequently, Sue is re-interviewed by two different officers, the interview is conducted properly in the presence of her solicitor and Sue confesses again. Which is/are true? (i)The first confession will definitely be admissible (ii)The second confession will definitely be admissible

53 ANSWERS (i)The first confession will definitely be admissible (ii)The second confession will definitely be admissible They are both false

54 CONFESSIONS WHICH ARE ADMITTED IN THE CONTEXT OF ASSERTIONS OF OPPRESSION OR UNRELIABILITY Where a confession is admitted in the context of assertions of oppression and/or unreliability under s.76(2) it appears that the judge should direct the jury to the effect that unless they are satisfied that it was not obtained by oppression/in consequence of anything said or done etc, they should disregard it

55 i Ian is charged with burglary. When questioned by the police he confessed but at his trial, during the voir dire, he asserts that he only confessed because, before the tape recorder was turned on, the interviewing officers made threats of violence. The judge is satisfied beyond reasonable doubt that no such threats were made and admits the confession. Which is/are true? (i) The jury must treat the confession as true (ii) The jury must disregard the confession unless they are satisfied beyond reasonable doubt that it was not obtained by oppression/ something said or done

56 ANSWERS (i)The jury must treat the confession as true (ii)The jury must disregard the confession unless they are satisfied beyond reasonable doubt that it was not obtained by oppression/ something said or done (ii) is true

57 DISCRETIONARY EXCLUSION OF CONFESSIONS Even where a confession is not excluded under section PACE 76(2), the court may exclude it in the exercise of its exclusionary discretion under PACE s.78 or in the exercise of its common law exclusionary discretion (preserved by PACE s.82(3)).

58 PACE S. 78 (EXCLUSIONARY DISCRETION) “In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.” (NB s 78 (like the preserved common law discretion) only applies to prosecution evidence but applies to all prosecution evidence, not just to confessions)

59 PACE s.78 AND CONFESSIONS The courts are likely to exclude a confession under section 78 where there have been significant or substantial breaches of PACE or of the Codes of Practice or where there has been bad faith (e.g where the police have lied to the accused and his solicitor) Potentially relevant factors appear to include the personal characteristics of the accused, the reliability of the confession, and the importance that the police behave properly

60 Jane, who is of low IQ, is interviewed by the police in the absence of her solicitor. Jane requests legal advice but the police officers, in a deliberate breach of Jane’s entitlement to legal advice, refuse Jane’s request in order make it easier for them to obtain a confession from Jane. Jane eventually confesses to the sexual offence which the police allege she had committed. Which is/are true? (i)The confession may be inadmissible under PACE s.76(2) (ii)The judge may be entitled to exclude the confession under PACE s.78

61 ANSWERS (i)The confession may be inadmissible under PACE s.76(2) (ii)The judge may be entitled to exclude the confession under PACE s.78 They are both true

62 i Sue is questioned by the police concerning an allegation of shoplifting. Sue’s solicitor, Anna, is present, but the police, in breach of the requirements of Code C, forget to record Anna’s name on the interview record. Sue confesses. Which is/are true? (i)The confession is inadmissible under PACE s.76(2) (ii)The judge must exclude the confession under PACE s.78

63 ANSWERS (i)The confession is inadmissible under PACE s.76(2) (ii)The judge must exclude the confession under PACE s.78 They are both false

64 COMMON LAW DISCRETION AND CONFESSIONS This is preserved by PACE s.82(3) Essentially, the court may exclude prosecution evidence either if its probative value is outweighed by its prejudicial effect or if it was unfairly or improperly obtained from the accused after the offence was committed In relation to confessions, it appears that the courts usually rely upon section 78, not upon the common law discretion

65 EXCLUSIONARY DISCRETION AND SUBSEQUENT INTERVIEWS Breaches of requirements of PACE etc during one interview may persuade the court to exclude a confession obtained during a subsequent interview in the exercise of its exclusionary discretion even though the subsequent interview was conducted properly

66 CONFESSIONS AND HUMAN RIGHTS Whilst the admission of a confession could result in a violation of Article 6 of the ECHR in appropriate circumstances, the safeguards which exist in English Law (e.g. tape recording of interviews, the existence of sections 76(2) and 78 of PACE, the use of the voir dire, and the giving of appropriate directions to the jury where a confession is admitted in the context of assertions of oppression or unreliability) should, in general, prevent confessions from being admitted in such circumstances

67 CONFESSIONS BY METALLY HANDICAPPED PERSONS (PACE S.77 (1))

68 Section 77(1) provides that: “…where [at a trial on indictment]-- (a) the case against the accused depends wholly or substantially on a confession by him ; and (b)the court is satisfied-- (i) that he is mentally handicapped; and (ii) that the confession was not made in the presence of an independent person, the court shall warn the jury that there is special need for caution before convicting the accused in reliance on the confession, and shall explain that the need arises because of the circumstances mentioned in paragraphs (a) and (b) above.”

69 WHAT DOES PACE S.77(1) DO? S77(1) does not render confessions inadmissible but rather, merely imposes a warning requirement where a confession to which it applies is admitted Confessions to which s.77 would apply may often be inadmissible under section 76(2)(b), so section 77(1) is of limited value

70 Otto, who is mentally handicapped, is questioned by the police in the absence of an independent person and confesses to the rape of which he is suspected. Which one is true? [a] The effect of s.77 of PACE is that the confession is admissible provided that the judge gives the jury an appropriate warning. [b] The confession may be inadmissible under PACE s.76(2)

71 ANSWERS [a]The effect of s.77 of PACE is that the confession is admissible provided that the judge gives the jury an appropriate warning. [b]The confession may be inadmissible under PACE s.76(2) [b] is true

72 EVIDENCE DISCOVERED IN CONSEQUENCE OF EXCLUDED CONFESSIONS/ ACCUSED’S MODE OF SPEECH, WRITING OR EXPRESSION (PACE S.76(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 (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.”

73 PACE S.76(5),(6) “(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”

74 Saul is being questioned in relation to a burglary during which a diamond ring was stolen. Saul denies the allegations against him until he is punched by a police officer. Saul then confesses and tells the police that the stolen ring is sewn into the lining of his fishing hat. Which is/are true? (i) The confession may be inadmissible under PACE s.76(2)(a) (ii) If the confession is inadmissible then evidence that the ring was found in the hat will also be inadmissible

75 ANSWERS (i)The confession may be inadmissible under PACE s.76(2)(a) (ii)If the confession is inadmissible then evidence that the ring was found in the hat will also be inadmissible (i) is true

76 Paul is being questioned by the police on suspicion of kidnapping. Paul only confesses after he has been beaten up by a police officer. In the course of his statement to the police, Paul uses some unusual words, unusual phrases and unusual grammatical constructions. The same unusual words, phrases and constructions were used by the kidnapper, who sounded like Paul, during a ransom demand made by telephone which the police tape recorded. True/false? Evidence of the unusual words, phrases and grammatical constructions will be inadmissible if the confession is excluded under PACE s.76(2).

77 ANSWERS Evidence of the unusual words, phrases and grammatical constructions will be inadmissible if the confession is excluded under PACE s.76(2). False

78 EXCLUDED CONFESSIONS AS EVIDENCE FOR A CO-ACCUSED (PACE S.76A) Essentially the provisions of s.76A, which applies where a co-accused wishes to adduce evidence of the accused’s confession, equate with those of s.76 except that the requisite standard of proof under s.76A(2), which must be discharged by the co- accused, is proof on the balance of probabilities. Thus, if the defence discharge their burden of proof under section 76A(2), a confession may be admissible for a co-accused even where it is inadmissible for the prosecution under s.76(2) or s.78.

79 PACE S.76A(1) “(1) In any proceedings a confession made by an accused person may be given in evidence for another person charged in the same proceedings (a co-accused) 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.”

80 PACE S.76A(2)(a) “If, in any proceedings where a co-accused 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;… the court shall not allow the confession to be given in evidence for the co-accused except in so far as it is proved to the court on the balance of probabilities that the confession (notwithstanding that it may be true) was not so obtained.”

81 PACE S.76A(2)(b) “If, in any proceedings where a co-accused 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 … (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 for the co-accused except in so far as it is proved to the court on the balance of probabilities that the confession (notwithstanding that it may be true) was not so obtained.”

82 Bill and Wallis are suspected of murder. When questioned by the police, Bill is unlawfully refused access to legal advice. Bill admits that he alone committed the murder and that Wallis was not involved. At the murder trial, Bill’s defence is that Wallis alone committed the murder and that Bill was not involved. Wallis’ defence is that Bill was the murderer. True/false? The confession may be inadmissible for the prosecution under PACE s.76(2) or PACE s.78 but still admissible for the defence under PACE s.76A

83 ANSWERS The confession may be inadmissible for the prosecution under PACE s.76(2) or PACE s.78 but still admissible for the defence under PACE s.76A True

84 S.76A(3)-(7) Other than in relation to the requisite standard of proof, S.76A(3) equates with s.76(4) (court raining admissibility of confession of its own motion) S.76A(4),(5),(6) (facts discovered in consequence of excluded confession/ accused’s mode of speech, etc, admissibility/ admissibility of evidence that fact was discovered in consequence of statement made by accused) equate with s.76(4),(5),(6) (reproduced above) S.76A(7) defines oppression in the same terms as s.76(8) (reproduced above).

85 ILLEGALLY, IMPROPERLY OR UNFAIRLY OBTAINED EVIDENCE (OTHER THAN CONFESSIONS)

86 NO EXCLUSIONARY RULE The fact that evidence (other than confessions) was obtained illegally, improperly or unfairly does not render it inadmissible unless the judge excludes it in the exercise of his exclusionary discretion As was seen above, the position in relation to confessions is different, their admissibility, in the context of assertions or unreliability, being governed by PACE s.76(2)

87 DISCRETIONARY EXCLUSION The fact that prosecution evidence was obtained illegally, improperly or unfairly does not automatically oblige the judge to exclude it under PACE s.78. The question for the judge is, essentially, whether, in the circumstances, admitting the evidence for the prosecution would have such an adverse effect on the fairness of the proceedings that it should not be admitted.

88 ENTRAPMENT There is no defence of entrapment If, in consequence of entrapment, the prosecution of the accused would bring the administration of justice into disrepute then the appropriate remedy will normally be the grant of a stay of proceedings If the issue of entrapment arises in the context of the exercise of the section 78 discretion the court may be required to exercise that discretion both in line with the principles which govern the granting of a stay and in order to ensure the procedural fairness of the trial

89 DC Collins, posing as a criminal, joins a gang who are planning a robbery. DC Collins secretly tape records all of his conversations with members of the gang and in no way encourages them to commit the offence which they are planning. DC Collin’s conduct was authorised in accordance with law under the relevant provisions of the Regulation of Investigatory Powers Act Which is/are true? (i) DC Collin’s evidence must be inadmissible at common law in consequence of entrapment (ii) The judge could exclude DC Collin’s evidence under PACE s.78 if admitting it would make the trial unfair, though this does not appear to be the case

90 ANSWERS (i) DC Collin’s evidence must be inadmissible at common law in consequence of entrapment (ii) The judge could exclude DC Collin’s evidence under PACE s.78 if admitting it would make the trial unfair, though this does not appear to be the case (ii) is true

91 ILLEGALLY OBTAINED EVIDENCE Breaches of requirements imposed by PACE or the Codes of Practice do not automatically render evidence admissible The court will be likely to exclude evidence in such circumstances in the exercise of its s.78 discretion if the breach was significant or substantial or was accompanied by bad faith

92 Reg, who was robbed in the street, attends a video identification procedure and identifies Adam as the robber. Adam is a white man and, due to an error, all of the other images that Reg was shown were of black men. Adam is charged with the robbery. Which one is true? [a] The ID evidence will be admissible because it is relevant to an issue in the proceedings. [b] The judge is likely to exclude the ID evidence under PACE s.78.

93 ANSWERS [a]The ID evidence will be admissible because it is relevant to an issue in the proceedings. [b]The judge is likely to exclude the ID evidence under PACE s.78. [b] is true

94 HUMAN RIGHTS The admission of evidence which was obtained illegally, improperly or unfairly will not necessarily give rise to a violation of Article 6 of the ECHR, though, in appropriate circumstances, it may do so. Section 78 of PACE should be exercised so as to prevent the admission of illegally, improperly or unfairly obtained evidence in violation of Article 6.


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