Confessions, Unfairly Obtained Evidence and Breaches of the Police and Criminal Evidence Act 1984 Codes of Practice
Principle
The fairness of the trial proceedings in criminal proceedings is guaranteed by Article 6 of the European Convention on Human Rights - see <ECHR Manual of Guidance>.
The Police and Criminal Evidence Act 1984 (hereafter called "PACE") and the Codes of Practice issued under Sections 66 and 67 of PACE are designed to allow the court to correct unfairness arising in the criminal trial process by allowing otherwise admissible evidence to be excluded from the prosecution case.
Guidance - Confessions
Section 76 of PACE deals with challenges as to the admissibility of confession evidence in criminal proceedings so as to prevent the confession being adduced against its maker by the prosecution as evidence to show guilt. Section 76(2) PACE directs the court to exclude confession evidence obtained:
- By oppression; or
- 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.
Definition of Confession
What constitutes a confession is set out in Section 82(1) PACE. It 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.
As a result statements made by a suspect which do not contain admissions are not liable to exclusion under Section 76 PACE - see Regina v Sat-Bhambra 1989 88 Cr App R 55. Such statements 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 Regina 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 note that where the admissibility of confession evidence is challenged under Section 76 PACE the prosecution must establish beyond a 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 is defined as including "torture, inhuman or degrading treatment, and the use or threat of violence" - see Section 76(8) PACE. This definition reflects the wording of Article 3 of the European Convention on Human Rights - See < Manual of Guidance on ECHR>. The meaning of the term was also considered by the Court of Appeal in the case of Regina v Fulling 1987 2 All E.R. 65. In that case the court held that "oppression" for the purposes of Section 76 PACE was to be given its ordinary dictionary meaning and was likely to involve some impropriety on the part of the interrogator - see <Archbold 15-345>.
Unreliable Confessions
In terms of unreliable confession prosecutors should note the wide ranging scope of Section 76(2)(b) PACE as set out by the Court of Appeal in the case of Regina v Fulling 1987 2 All E.R 65.
It can cover:
- 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.
Safeguards for those suffering from a "mental handicap"
In addition, Section 77 PACE provides additional safeguards for those who suffer from a mental handicap - see <Archbold 15-352>. The term "mental handicap" is defined as applying to any person who "is in a state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning".
The test to be applied 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 - see <Archbold 15-351a>.
Confessions - Review of Evidence
Confession evidence often forms a crucial part of the prosecution's case against a defendant. Prosecutors in reviewing cases in which the prosecution intend to introduce evidence of a confession need to examine carefully the circumstances in which the confession was made in order to decide on its admissibility.
In particular where on review it appears that a challenge is likely to be made to the admissibility of confession evidence steps should be taken to obtain additional evidence covering the circumstances in which the confession was made. This evidence may go beyond what is required to prove the alleged offence - for example, where it is alleged a confession was made because the suspect was assaulted by interviewing officers then the custody record may be useful evidence to rebut the allegation and, if appropriate, statements may be obtained from the custody officer and others who saw the suspect during the relevant period, e.g. a police surgeon.
In reviewing those cases which depend on confession evidence, Prosecutors should apply the Code for Crown Prosecutors and should decide whether or not there is a realistic prospect of a conviction on other evidence where it appears probable that the confession will be excluded by the Court.
Guidance - Unfairly obtained evidence
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 - see <Archbold 15-428>.
The general nature of the discretion was set out by Lord Lane C.J. in the case of Regina v Quinn Crim L.R. 581 as being "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 in reviewing cases should note that each case will turn on its on particular facts and that the courts have resisted attempts to fetter the discretion - see for example Regina v Samuel 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.
However it is possible to highlight a number of areas where challenges may be made as to the fairness of evidence being adduced:
- breaches of the European Convention on Human Rights will normally allow a challenge to be made under Section 78 PACE as to the admissibility of the evidence obtained thereby.
- breaches of the Codes of Practice issued under PACE. Such breaches are admissible in evidence in all civil and criminal proceedings and where a provision in a Code is relevant to an issue in a case "it shall be taken into account" by the court. Prosecutors should note that if the provisions of Code of Practice are not followed it is likely that the admissibility of evidence obtained as a result of the breach will be challenged.
- evidence obtained as the result of a trick. Whilst Section 78 PACE has not altered the substantive law that neither entrapment nor the use of an agent provocateur in themselves will be unfair if it is shown the police acted in bad faith it is almost inevitable that evidence so obtained will be excluded.
Unfair Evidence - Review of Evidence
Prosecutors will ensure that they are familiar with the provisions of the Codes of Practice issued under PACE and will be alert to potential breaches of the Codes and to evidence which may be subject to challenge as being unfairly obtained. It will be noted that 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.
Reviewing Lawyers will be alert as to potential breaches of the Codes of Practice and unfairness in relation to evidence on which the prosecution rely. In reviewing potential challenges under Section 78 PACE Prosecutors will regard decided cases as useful examples rather than binding precedent.
Prosecutors having identified on review evidence, which is likely to be challenged as unfairly, obtained under Section 78 PACE will:
- 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 to decide if court is likely to find a significant and substantial breach of the accused's rights.
In any event prosecutors will 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.
Procedure - Court Practice - Challenging Confessions, Unfairly Obtained Evidence or Breaches of the Codes of Practice
In many cases you will be put on notice by the defence that they intend to challenge the admissibility of a confession. Prosecutors should also be aware that the court can raise the issue of admissibility even if the defence have failed to do so - see Section 76(3) PACE. It is for the prosecution to prove beyond reasonable doubt that the confession should be admitted; otherwise the court must exclude the evidence.
Voire Dire
The challenge to the admissibility of a confession takes the form of a trial within a trial (also called a voire dire). This applies to both Crown Court and Magistrates Courts because Section 76(2) provides that the Court "shall not allow the confession to be given in evidence against [the accused]", except in so far as proved admissible by the prosecution. As a result the challenge as to admissibility must be made before the evidence of the confession is given by way of a trial within a trial involving 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.LR 860.
Challenges under Section 78 PACE do not usually involve a trial within a trial, although a trial within a trial may be appropriate where the defence seek to challenge confession evidence under both Section 76 and Section 78 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.
Section 76(4) PACE provides that where a confession is excluded in whole or in part, the prosecution may adduce evidence:
- of facts discovered as a result of the confession; or
- of the way in which the defendant speaks, writes or expresses him or herself where this is relevant.
However, by virtue of Section 76(5) PACE, evidence of the causal link between the discovered fact and the excluded confession is not admissible on behalf of the prosecution unless evidence of the link is given by the defence.
Useful links
<ECHR Manual of Guidance>
<Archbold 15-345>
<Archbold 15-352>
<Archbold 15-351a>
<Archbold 15-428>
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