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16. Confessions
Includes:
- Statutory rules of admissibility;
o Section 76 (Oppression and Unreliability)
o Section 78 (Unfairness)
- Voir Dire Hearings;
- Common Law rules of admissibility.
Under Section 82(1) PACE, a confession is:
“Any statement wholly or partly adverse to the person who made it, were they
made to a person in authority or not and whether made in words or otherwise”.
An ‘unequivocal confession’ embodies the traditional meaning ie ‘it was me’.
A mixed statement is those which are partly inculpatory and partly exculpatory ie ‘I
was there but I didn’t steal anything’.
There is no requirement for a confession to be articulated in words: a nod, sign, or
gesture can be sufficient.
- As can a re-enactment or visual demonstration.
- Misspelling does not affect a written confession.
Conduct which may convey guilt, such as speeding away from the scene of an
accident, is not a confession.
Statutory Rules of Admissibility
, Section 76 Admissibility of Confessions
Under S76(1), a confession is admissible if it is relevant to any issue in the
proceedings and is not excluded on the grounds of:
(a) Oppression; or
- Oppression should be considered at its dictionary definition. It is subject to
misconduct of a deliberate and serious nature.
- R v Fulling definition of oppression: ‘the exercise of authority or power in a
burdensome, harsh, or wrongful manner; unjust or cruel treatment of subjects,
unfairness etc, or the imposition of unreasonable or unjust burdens.’
- Anger, aggression, or bad language from a police officer does not constitute
oppression.
- Excessive questioning has been regarded as oppressive.
- If a judge is satisfied that the confession was not obtained by
oppression, the defence can still see to discredit the evidence in a
closing speech.
(b) In consequence of anything said/ 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.
- This limb does not necessarily require impropriety on behalf of the police. But
instead requires an objective test, taking into account all the circumstances and
asking if the circumstances were likely to render a confession unreliable.
- Both positive and negative acts, as well as omissions, can meet these criteria:
- ‘Inducements’ (promising to release or bail someone if they “tell all“ etc.)
- Interviewing a young/mentally vulnerable suspect without an appropriate adult.
- If a solicitor applies undue pressure.
- A drug addict fiending for next hit.
- Breaches of Code C (Detention, Treatment, Questioning) will often render unreliability.
Section 76 comes into operation where either:
The defence represents that the confession is inadmissible; or
The court of its own motion requires proof of admissibility.
In the circumstances the obligation is on the prosecution to prove beyond
reasonable doubt the viability of the confession.
If a confession is wholly or partly excluded, there is no rule forbidding the “fruit of
the forbidden tree”; meaning exclusion does not affect the admissibility of any
facts discovered as a result of the confession.
- However, if the prosecution cannot reveal to the jury how they came
to a piece of evidence, without mentioning the excluded confession,
there is evidence cannot be used.
The exclusion of a confession also does not affect any character evidence
adduced from the confession i.e. writing or talking style.
Section 78 Exclusion of unfair evidence.
‘In any proceedings, the court may refuse to allow evidence on which
the prosecution proposes to rely if it appears to the court that, having
regard to all the circumstances, the admission of the evidence would
have such an adverse effect on the fairness of the proceedings that
the court or not to admit it.’
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