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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.

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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 some impropriety on the part of the interrogator. 

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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 is important that prosecutors take into consideration whether confessions can be adduced to be reliable or not by the Courts.

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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 to decide 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.

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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.

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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 magistrates court 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 court to exclude evidence as a matter of discretion.

Useful Links

Article 6 of the European Convention on Human Rights
The Police and Criminal Evidence Act 1984

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