1. www.herts.ac.uk/law LGS 5 Confessions www.herts.ac.uk/law

2. Admissibility of a Confession at Trial Has the confession been obtained by oppression or things ‘said and done?’ Yes Must be excluded under s.76 PACE 1984 May be excluded under s.78 PACE 1984 No Confession is admissible at trial – Mushtaq direction

3. Definition of a Confession See s.82(1) PACE 1984 “ 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”.

4. Breaches of PACE These may make a confession inadmissible so check they have been complied with: 1. Code C – Detention and Questioning 2. Code E – Tape Recording of Interviews 3. Code F – visual recording of interviews 4. S.58 – Right of Access to Legal Advice 5. S.77 – presence of an ‘appropriate adult’ 6. Code C 10.1 - Failure to give a caution before interview 7. Code C para 11.3 – oppressive interviews 8. Code C para 11.5 - inducements

5. Admissibility of a Confession – S.76 PACE Admissibility is dealt with at a voir dire A confession will be admissible as long as: It has not been obtained by oppression – s.762(a) It has not been rendered unreliable due to things ‘said and done’. Possible to rely on one or both of the above. S.76(2)(a) requires some police impropriety whilst s.76(2)(b) does not. However, s.76(2)(b) requires a causal link

6. Oppression – s.76(2)(a) See partial definition in s.76(8) See R v Fulling [1987] QB 426 CA – oppression given its dictionary definition Requires some police impropriety – burden of proof on the prosecution Does not have to involve physical violence – see R v Paris’ Abdullah and Miller (1993) 97 Cr App R 99 Discourteous questioning permissible – see R v Emmerson [1991] 92 Cr App R 284 May also be a breach of s.76(2)(b)

7. Unreliability – S.76(2)(b) No definition of ‘unreliability’ or ‘things said and done’ Must be a causal link between actions of police officers/third party and the confession Test is whether confession might be unreliable Things said and done cannot be self-induced – see R v Goldenberg [1989] 88 Cr App R 285 Examples of unreliability – breaches of PACE See cases such as R v McGovern (1991) 92 Cr App R 228 (CA)

8. PROBLEM QUESTION 1 Simon, a Merchant Banker, is arrested for fraud and taken to a local police station. He is an intelligent and sophisticated man who knows his rights. He refuses access to a Solicitor as he sure it is all ‘a misunderstanding’. He is held for 13 hours during which time he is allowed only short breaks before being interviewed again. Police officers interview him a total of 5 times in those 13 hours during which they shout questions at him, repeat questions and heckle and bully him. Exhausted Simon finally confesses. Is Simon’s confession admissible at trial?

9. Use of S.78 PACE Judicial discretion Can be used for any improperly obtained evidence not just confessions If S.76 application likely to be weak then ask Judge to use S.78 discretion Used where there is evidence of breaches of PACE – see R v Mason [1988] 1 WLR 139, R v Alladice [1988] Crim LR 608, R v Samuel (1988) 1 QB 615 Fairness test applies See R v Keenan (1990) 2 QB 54 (CA) and R v Walsh (1990) 91 Cr App 161 (CA) – breaches must be ‘significant and substantial’

10. Evidence Found as a Result of a Confession See s.76(4) PACE 1984 That part of the confession needed to show: 1. Any facts discovered as a result of the confession e.g. Stolen goods – see s.76(4)(a) 1. To show accused speaks, writes or expresses himself in a particular way – see S.76(4)(b)

11. PROBLEM QUESTION 2 Michael is arrested on suspicion of the rape and murder of a 10 year old girl. Michael has an IQ of 68 and chooses not to be represented by a solicitor. Michael is questioned for 10 hours without a break and is confused by the questions. One of the police officers promises that if he confesses he will not get into trouble. Michael confesses that he was in the area at the time and tells police officers where the child’s clothing can be found. Is Michael’s confession admissible?

12. Can a Confession be Used Against Another? General principle is that a confession is only a confession against the maker – see R v Gunewardene [1951] 2 KB 500 Exceptions See S76A PACE 1984 – reliance on a co-defendant’s confession Joint Trials – see R v Hayter [2005] UKHL 6 Use of inclusionary discretion under s.114(1)(d) CJA 2003 – see R v Y [2008] 1 WLR 1683

13. PROBLEM QUESTION 3 Paul and Terry are suspected of possession and supply of controlled drugs. The police raid their flat and find 10 grammes of cocaine. They are taken to separate police stations. Paul has a solicitor present and gives a ‘no comment interview’ and is released after 4 hours. Terry is held for 26 hours incommunicado because he is told he is suspected of a serious offence involving others who have not yet been arrested. The police tell him that Paul has confessed and as a result Terry confesses. At their joint trials Paul wishes to use Terry’s evidence against him. The prosecution wish to use Terry’s confession against both Terry and Paul. Can the confession be used against both Terry and Paul?

14. FINISH Thank You You have now completed LGS5