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Blackstone\'s Criminal Practice 2021 (Book and All Supplements)
CONFESSIONS AND UNLAWFULLY OBTAINED EVIDENCE NOTES - BPTC, Criminal Litigation
In conjunction with BPP Criminal Litigation Manual and Blackstone's Criminal Practice 2021.
Disclosure of unused material and defence statements
ANCILLARY ORDERS AND COSTS ON CONVICTION NOTES
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CONFESSIONS AND UNLAWFULLY OBTAINED EVIDENCE NOTES
F18.1 1. The definition of confessions under PACE
Definition: s82 PACE 1984→ (1) '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.
This makes clear a ‘confession’ covers statements such as an informal admission to a friend
or colleague and not limited to a person in authority.
S76 PACE 1984→ the general rule: a confession made by an accused 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 or done conducive to unreliability (s76(2)). Rule extended
to operate not only in favour of the prosecution but also for a co-accused (s. 76A).
F18.2 From s82+s76, it follows that → only a confession made 'by' an A may be given in
evidence 'against him'- that where the only proof that the A made the statement comes from
the confession itself it should not be admitted. BUT: Ward [2001] → a statement where a
passenger gave D’s personal details to a PO when asked for his own was admissible. Court
said jury should be given clear direction in such cases not to rely on the statement unless they
were sure, from its contents and such surrounding evidence as there was, that it was the
appellant giving an accurate identification.
Mawdesley v Chief Constable of Cheshire Constabulary [2003] → a statement disclosing the
identity of a driver was admissible as a confession if it could be inferred that A had written it,
even though it was unsigned (and so inadmissible under the RTA 1988).
F18.3 Guilty Pleas → plea of guilty constitutes a confession. Where plea retracted, court may
decide it should not be given in evidence by the P b/c of the adverse effect on the fairness of
proceedings invoking s78. A retracted plea may also be relied upon as a confession by a co-A
to which the court’s power of discretionary exclusion under s78 does not apply. An admission
made by an A in other proceedings would similarly constitute a confession and could be relied
upon provided it complies with the provisions of s76(2) and that it is not excluded under s78.
Plea in mitigation→ a PIM made by counsel on behalf of a client convicted on his plea of 'not
guilty' should not be understood as a confession by the convicted person through his counsel.
The same is true if the convicted person advances his mitigation in person.
F18.4 Confessions Otherwise than in Words → s82(1) suggests confession may include a nod
of acceptance or ‘thumbs-up’ sign, which could be regarded as a ‘statement’ in sign language
(words or otherwise). Has been held that a filmed re-enactment of the crime charged with
was to be regarded as a confession, provided conditions of admissibility were satisfied.
Conditions of admissibility should be same for re-enactments as for oral/written confessions;
i.e. allegations of police misconduct may exclude confessions.
,Conduct not intended to convey guilty but may be interpreted as doing so, is not a statement
so not a confession e.g. driving away at speed from the scene is not a confession. Though
evidence would be relevant and admissible.
F18.5 Partly and Wholly Exculpatory Statements→ so a ‘mixed statement’ (part confession,
part exculpation) is a confession for purposes of PACE. 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 (where this is also in dispute) where spoken at all. COA have held not
everything stated at the time of a partial admission is necessarily part of a ‘confession’. E.g.
admission of co-accused A of presence at the scene, but blamed co-accused B for killing was
not admissible at the behest of co-accused C (defence B alone committed the crime) b/c the
admission of presence, was not itself relevant to C’s defence, while the allegation that B was
guilty was not part of the confession. (was admitted under s114(1)(d) CJA as IOJ exception)
2. Admissibility and Exclusion of confessions
F18.8 S76 PACE 1984
(1) In any proceedings a confession made by an accused person may be given in evidence
against him insofar 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 insofar 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.
F18.9 S76 appears NOT intended as mechanism for regulating the admissibility of a confession
made by one co-A as evidence for another. S76A - admission of confession of co-A.
The prosecution do not have to prove the admissibility of a confession upon which they rely
unless either (a) the defence 'represents' that it is inadmissible under s. 76(2), or (b) the
court of its own motion requires proof of admissibility under s. 76(3). If P are unable to prove
admissibility beyond RD, the confession must be excluded, notwithstanding that it may be
true: the court has no discretion in the matter.
, NOTE: The court should be vigilant to scrutinise a confession that is the sole evidence relied
upon by the P. A confession may be excluded in part (s76(4)(6). An inadmissible confession
should not be used as the basis for a formal caution (ex parte Thompson [1997]).
F18.10 Exclusion for Oppression (s76(2)(A)
S76(8) PACE → 'oppression' includes torture, inhuman or degrading treatment, and the use
or threat of violence (whether or not amounting to torture).
NOTE: the reference to 'torture' may be interpreted in the light of the offence of torture
contained in s134 CJA 1988. 'Torture and inhuman or degrading treatment' is also prohibited
by Art 3 and reference may be made to relevant case law (e.g. Republic of Ireland v UK (1978)).
F18.1/12/13/14 Ambit of Oppression
1. Oppression almost inevitably involves some impropriety on the part of the interrogator.
And, not all impropriety necessarily involves oppression, otherwise all wrongful acts i.e.
breaches of PACE would be termed oppressive.
• Fulling [1987] → PO had revealing that D had been unfaithful to her and the ‘other
woman’ was held in cell next to F (causing distress) not oppression in sense ‘something
above and beyond that which is inherently oppressive in police custody’.
• Emmerson (1991) → PO raising voice/used bad language, not oppressive.
2. Unduly hostile questioning may be oppressive, Q of degree
e.g. Paris (1993) → in interview A had been ‘bullied and hectored’ amounted to A being
intimidated, so was oppressive. BUT NOTE: tactics similar have been regarded acceptable
provided the reliability of confession not compromised.
3. A degree of impropriety which is insufficient for oppression may serve to support an
argument that a confession should be excluded under s76(2)(b) or s78
e.g. Samuel [1988] → COA acknowledged possibility oppression might occur where access
to legal advice is improperly denied, but favoured quashing conviction by s78.
SO → Exclusion for oppression is likely to be reserved for those rare cases where an accused
has been subjected to misconduct of a deliberate and serious nature, and where the court
is anxious to mark its disquiet at the methods employed.
Issue of extent to which the use of similar methods by the same officer in relation to other
suspects may figure in cross-examination → court’s reluctance to exclude evidence on
oppression may be overcome by use of evidence e.g. PO alleged to have tortured D could be
CE to devastating effect that had the findings of a court regarding a similar torture by the
same officers on another man had been available for use in CE. So, PO could be CE as to
whether they were part of a culture of pressurising W improperly.
F18.16 Relevance of Character and Attributes of Accused → CL observations that the nature
of oppression varied according to character and attributes of accused remain relevant e.g.
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