Confessions, Unfairly Obtained Evidence and Breaches of PACE

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Confessions, Unfairly Obtained Evidence and Breaches of PACE

Principles

The fairness of the trial proceedings in criminal proceedings is guaranteed by Article 6 of the

European Convention on Human Rights.

Section 76 of PACE deals with challenges to the admissibility of confessions in criminal

proceedings see Archbold 15 352. Section 76(2) PACE directs the court to exclude

confession evidence obtained by oppression; in circumstances which were likely to make the

confession unreliable. Prosecutors should remember that, whilst the confession itself may be

excluded, section 76(4) allows facts discovered as a result of the confession, or of the way in

which defendants speak, write or express themselves, to be adduced where relevant.

Section 78 PACE provides a discretion for the court to exclude evidence which would

otherwise be admissible against a defendant on the basis it would be unfair to adduce it.

PACE and the Codes of Practice issued under sections 66 and 67 of PACE are designed to

allow the court to correct unfairness arising from criminal trials.

Admissibility of Confessions

Section 82(1) PACE defines a confession as including:

Any statement wholly or partly adverse to the person who made it;

Whether made to a person in authority or not;

Whether made in words or otherwise.

Statements made by a suspect which do not contain admissions are not liable to exclusion

under Section 76 PACE - see R v Sat-Bhambra 1989 88 Cr App R 55. They are not what

section 82(1) PACE was aimed at, and prosecutors should note that simply because

exculpatory statements are used against a defendant during the trial process on the basis they

are false or inconsistent does not mean the statements become confessions for the purposes of

section 76 PACE - see R v Park 99 Cr. App. R. 270.

Section 76(2) PACE directs the court to exclude from the trial process, confession evidence

which has been obtained either as: a result of oppression; or: In circumstances which were

likely to make the confession unreliable.

Prosecutors should also note that where the admissibility of confession evidence is

challenged under section 76 of PACE, the prosecution must establish beyond reasonable

doubt that the confession was not in fact made as a result of oppression, nor in circumstances

which were likely to have made it unreliable.

The term "Oppression" for the purposes of section 76 PACE includes "torture, inhuman or

degrading treatment, and the use or threat of violence". This reflects the wording of Article 3

of the European Convention on Human Rights. The meaning of the term was also considered

by the Court of Appeal in the case of R v Fulling 1987 2 All E.R. 65. The court held that

"oppression" was to be given its ordinary dictionary meaning and was likely to involve someimpropriety on the part of the interrogator.



Unreliable Confessions

Unreliable confessions were given a broad interpretation by the Court of Appeal in R v

Fulling (above).

This included:

Confessions obtained as the result of an inducement - for example a promise of bail or

a promise that a prosecution would not arise from the confession;

Hostile and aggressive questioning;

Failure to record accurately what was said;

Failure to caution;

Failure to provide an appropriate adult where one is required;

Failure to comply with the Code of Practice in relation to the detention of the accused

- for example a failure to allow sufficient rest prior to an interview;

Failure of the Defence Solicitor or Appropriate Adult to act properly - for example by

making interjections during interview which are hostile to the defendant. It isimportant that prosecutors take into consideration whether confessions can be

adduced to be reliable or not by the Courts.

Safeguards for those Suffering from a "Mental Handicap"

Section 77 PACE provides additional safeguards for those who suffer from a "mental

handicap". This is defined as being in: "a state of arrested or incomplete development of mind

which includes significant impairment of intelligence and social functioning".

The test is an objective one. The court should consider medical evidence as to the actual

mental condition of the suspect. The disorder must be of a type which might render a

suspect's confession unreliable and there must be a significant deviation from the norm. In

addition, there must be a history of making admissions, which point toward, or explain the

abnormality of mind suffered by the suspect and are not solely based on a history given by

the suspect.

Review of Evidence

Confession evidence often forms a crucial part of the prosecution's case against a defendant.

When reviewing cases, in which they intend to introduce evidence of a confession,

prosecutors should examine carefully the circumstances in which the confession was made todecide on its admissibility.

If a challenge to the admissibility of a confession appears likely steps should be taken to

obtain additional evidence covering the circumstances in which it was made. For example,

the custody record and a statement from a forensic physician who examined the suspect

during the relevant period may be useful to rebut any allegation that the suspect was abused

by officers.

When relying on confession evidence, prosecutors should apply the Code for Crown

Prosecutors and decide whether or not there is a realistic prospect of a conviction on the basis

of the available evidence.



Unfairly Obtained Evidence

Section 78 PACE enables a court to exclude evidence which would otherwise be admissible

against a defendant on the basis it would be unfair to adduce it . The nature of the courts

discretion was explained by Lord Lane C.J. in the case of R v Quinn Crim L.R. 581:

"...The function of the judge is therefore to protect the fairness of the proceedings, and

normally proceedings are fair if... all relevant evidence [is heard] which either side wishes to

place before [ the court], but proceedings may become unfair if, for example, one side is

allowed to adduce relevant evidence which, for one reason or another, the other side cannot

properly challenge or meet."

Prosecutors should note that each case will turn on its own facts, and that the courts have

resisted attempts to fetter their discretion - see for example R v Samuel 1988 Q.B 615 where

the court held that because of the infinite variety of circumstances, it was undesirable to

attempt any general guidance as to how the discretion under section 78 should be exercised.

Challenges to the Fairness of Evidence

Areas where successful challenges may be made include where evidence has been obtained

as a result of:

Breaches of the European Convention on Human Rights;

Breaches of the Codes of Practice issued under PACE;

Bad faith on the part of the police.

Review of Evidence

Prosecutors should be familiar with the provisions of the Codes of Practice issued under

PACE and alert to potential breaches. If the provisions of a relevant Code of Practice are not

followed, the consequences of the failure to comply may result in evidence being excluded.

However, not all breaches will render evidence inadmissible. The Court will look for a

significant and substantial breach before going on to consider whether or not to exclude

evidence obtained as a result of the breach.

When reviewing potential challenges under section 78 PACE, prosecutors should refer to

Archbold from 15-483 for useful examples. Having identified evidence that is likely to be

challenged prosecutors will need to:

establish the facts, and if necessary ask the police for an explanation as to their

actions;

apply the relevant law and provisions of the Codes of Practice to the facts, and decide

if the court is likely to find a significant and substantial breach of the defendant's

rights.

In any event, prosecutors should apply the Code for Crown Prosecutors during the review

process. In particular, if it appears probable that the Court will exclude the evidence, the

Reviewing Lawyer will decide whether or not there is a realistic prospect of a conviction

without it.



Challenging Admissiblity

Court Practice on Challenging Confessions, Unfairly Obtained Evidence and Breaches

of the Codes of Practice

The admissibility of a confession may be challenged in the Crown Court or the magistratescourt by the defence or by the court of its own volition - see section 76(3) PACE in the

course of a "voire dire" (a trial within a trial). Section 76(2) provides that the Court "shall not

allow the confession to be given in evidence against [the defendant]" except in so far as

proved admissible by the prosecution. This requires the calling of witnesses by the

prosecution to support its case for the evidence to be admitted. The defendant is not obliged

to give evidence or call witnesses in support of his or her case. Nor is the court concerned as

to the truthfulness of the confession - see R v Davis 1990 Crim. L.R. 860.

Challenges under Section 78 PACE do not usually involve a trial within a trial unless the

defence seek to challenge confession evidence under both section 76 and section 78 of

PACE. Section 82(3) PACE preserves all the powers that existed at common law for a courtto exclude evidence as a matter of discretion.

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Confessions, Unfairly Obtained Evidence and Breaches of PACE