CONFESSIONS

Definition: s82(1) PACE

“Confession”: Statement which is wholly/partly adverse to the person who made it
 whether made to a person in authority or not
 whether made in words or otherwise

Question: Whether the statement was wholly/partly inculpatory at the time it was made
 If purely exculpatory at time statement made, does not become inculpatory (a “confession”)
if later takes a character negative to statement-maker

Mixed Statements
“Mixed statements” - partly adverse (inculpatory) and partly in favour (exculpatory) of statement-
maker
 must contain a significant admission of fact on any issue
 ie. must be capable of adding some degree of weight to Prosecution case on an issue
relevant to guilt

Whole statement is admissible – unfair to Defendant to only admit inculpatory parts (Storey)
 Judge may point out that inculpatory part likely to be true (otherwise why say it?) but
exculpatory parts do not have same weight

Only admissible as evidence of truth of the matters stated if tendered by Prosecution

 but, once admitted, Defendant may rely on statement as evidence of truth of exculpatory
parts

Admissibility
s76(1) PACE
Rule: Confession relevant to a matter-in-issue in the proceedings is admissible if:
 facts contained in statement are known personally to statement-maker, and
 it is not excluded.

Facts known Personally to Statement-maker

Hulbert – Defendant (charged with handling) told police person who gave her goods said they were
stolen
 not admissible as evidence to prove (of truth) that goods were stolen as fact contained in
statement (that goods stolen) was not known personally to Defendant (statement-maker)
 admissible as evidence to prove that Defendant believed goods were stolen as fact
contained in statement (that she was told they were stolen) was known personally to
Defendant.
 Restrictions on Admissibility
s76(2) PACE
Confession (tendered by Prosecution) may be excluded if Defence represent that:
 it was obtained as a result of oppression, or
 it was obtained as a result of something said/done to Defendant – which was likely to
render the confession unreliable.

Approach
Q1: Did the breach amount to oppression?
 Subjective test - Consider the breach and attributes of Defendant (was Defendant
oppressed?)
 Yes – confession excluded

Q2: Was the confession obtained as a result of the breach (thing said/done)?

Q3: Was the breach likely to render the confession unreliable?

 Objective test - “was it likely to” not “did it”

Q4: Have Prosecution proved beyond all reasonable doubt that the confession was not obtained as
a result of the thing said or done?

“Oppression”
s76(8) – includes torture, inhuman or degrading treatment and the use or threat of violence

Fulling – give ordinary dictionary meaning:

 Exercise of authority or power in a burdensome, harsh or wrongful manner,
 Unjust or cruel treatment of subjects, inferiors etc, or
 The imposition of unjust or unreasonable burdens

Consider: Character and attributes of Defendant (ie. was Defendant oppressed?)

ie. higher requirement to amount to “oppression” where Defendant strong and intelligent, lower
requirement where Defendant weak, vulnerable.
 Examples:
◦ putting Questions to Defendant who is mentally ill so as to “skilfully and deliberately”
induce a delusionary state in him – oppression,
◦ Defendant who is intelligent, sophisticated etc – less likely oppression.

s58 PACE – Right to Legal Advice

Defendant, detained at Police Station, entitled to privately consult a solicitor on request.
 Request must be noted in custody record
  In any event (request or not), must be permitted to see a solicitor within 36 hours of the
relevant time (time custody begins)
Must be given access to solicitor as soon as reasonably practicable

Unless delay permitted

Circumstances where may be permitted

Authorising officer has reasonable grounds to believe that Defendant's exercise of his right to see a
solicitor at that time:
◦ will lead to interference/harm to evidence connected with that offence,
◦ will lead to physical injury to other persons,
◦ will lead to alerting of suspects not yet arrested,
◦ will hinder recovery of property obtained as a result of the offence
◦ will hinder the recovery of the value of property which Defendant has benefitted from as
a result of his criminal conduct (proceeds of crime)
Must show more than a substantial risk of the fear being realised

Authorisation for Delay

◦ Defendant must be in custody for an indictable offence,
◦ delay must be authorised by Police Officer minimum rank of superintendent
◦ authorisation: in writing or oral confirmed in writing as soon as reasonably practicable

Requirements
Must tell Defendant reason for delay, and note reasons in Custody Record as soon as reasonably
practicable
There must be no further delay in permitting Defendant access to a solicitor once those reasons
cease.

Solicitor at Interview
If Defendant has been permitted to see a solicitor he is entitled, on his request, to have a solicitor
present at his interview.

PACE Codes
s67(11) PACE – Court shall take account of the PACE codes in determining any question arising in
proceedings
but breach of a PACE Code does not automatically lead to confession being excluded

Obtained as a Result of a Thing Said/Done

Thing said/done must be external to Defendant and there must be a causal link between the thing
said/done and the confession.
3-stage test:
1. Was the thing said/done external to Defendant? (does not have to be by Police Officer)
2. Was the breach (thing said/done) significant and substantial?
3. Is there a causal link between the breach and the confession?

“Thing said or done” - may be by omission

Examples:
 Failure to caution a suspect,
 Improper denial of access to a solicitor

Unreliability
Court not concerned with the specific confession, but any confession obtained as a result of
breach.
Bad Faith is not required for the breach (thing said/done) to be likely to render the confession
unreliable.

Exclusion
General Rule: If bad faith or deliberate impropriety in the breach (thing said/done), the confession
will be excluded
Key Question: Would it be unfair to admit the confession because of the thing said/done?

Procedure for Applying to Exclude Confession under s76

s76(2) - Voire Dire required

Crown Court
Application to exclude should be made before the confession is given in evidence
 If made after confession admitted, Judge:
◦ can direct Jury to disregard it,
◦ can direct Jury to matters which might affect weight attached to it, or
◦ can discharge jury (if cannot solve by direction)

Magistrates Court
Voire dire generally inappropriate, but Ms obliged to hold one.
May take same approach as to s78 applications – seek views of parties and, if exclude, consider
whether substantive hearing should be by different bench.

s78 PACE
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 proceedings that the court ought not to admit it.
Same process – voire dire required.

Common-Law Discretion to Exclude

s82(3) PACE – Preserves common-law discretion to exclude – ie. where the prejudicial effect of the
evidence substantially outweighs its probative value.

Effect of Exclusion of Confession

s76 PACE
(4) Fact that confession excluded under this section shall not affect the admissibility of any
evidence:
 of facts discovered as a result of that confession, or
 Where the confession is relevant – showing Defendant speaks, writes, expresses himself in
a particular way – as much of the confession as is necessary to show that he does so.
(5) Evidence that a fact (obtained as a result of an excluded confession) was made as a result of
an excluded confession is not admissible unless given by Defendant/on Defendant's behalf.

Rule: Evidence obtained as a result of an inadmissible confession is admissible, but evidence that
it was so obtained is not.

Only applies where the confession is excluded under s76 PACE, not s78 or s126 CJA (general
discretion to exclude hearsay)
 Where confession excluded under s78, s126 or common-law discretion – evidence obtained
as a result is not admissible by s76(4)
 May seek to admit by usual principles of relevance etc.

Evidence obtained as a result of the excluded confession, may then be liable to exclusion under
s78 PACE.