LAW OF EVIDENCE 3 2015

LAW OF EVIDENCE 3
ADMISSIBILITY OF EVIDENCE OBTAINED BY LAW
ENFORCEMENT AGENCIES (Part 2)
Professor John Hatchard

ADMISSIBILITY OF CONFESSIONS

David is interviewed by the police concerning a burglary. The interviewing

officer is not aware that David has learning difficulties. Without his legal
representative being present, he makes a statement admitting to the
offence in exchange for being released on bail. The contents of the
statement are true. Is this statement admissible at his trial?
Reasons For Non-Availability of a Witness at The Trial
Witness is missing
Witness is ill
Witness is dead
Witness is afraid to give evidence
Witness has mental issues
Witness is out of the country
Witness is spouse/partner of the accused: therefore, they are only sometimes compellable
Witness is the defendant: therefore, not compellable
What is a confession?
Out of court statements
A confession includes any statement wholly or partly adverse to the
person who made it, whether it be a person in authority or not and
whether made in words or otherwise (section 82(1) PACE).
Sliogeris [2015] EWCA Crim 22 (see below)
Admissibility of a confession
Note the importance of confessions at criminal trials:
e.g. Wilding [2010] EWCA Crim 2799: D was charged with sexual activity
with a female child under 16: there was no evidence against him other
than his own admissions in interview.
Section 76 PACE: Confessions. Refers to admissibility of a confession
(1) In any proceedings [section 82 PACE defines proceedings as criminal
proceedings] a confession made by an accused person may be given in
evidence against him in so far as it is relevant to any matter in issue in the
proceedings and is not excluded [trial judge decides whether or not to submit
a confession] by the court in pursuance of this section.
(2) If, in any proceedings where the prosecution proposes to give in
evidence a confession made by an accused person, it is represented to the
court that the confession was or may have been obtained
(a) by oppression of the person who made it; or

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(b) in consequence of anything said or 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,
the court shall not allow the confession to be given in evidence against
him except in so far as the prosecution proves to the court beyond
reasonable doubt that the confession (notwithstanding that it may be true)
was not obtained as aforesaid.
(3) In any proceedings where the prosecution proposes to give in evidence
a confession made by an accused person, the court may of its own motion
require the prosecution, as a condition of allowing it to do so, to prove that
the confession was not obtained as mentioned in subsection (2) above.
(4) The fact that a confession is wholly or partly excluded in pursuance of
this section shall not affect the admissibility in evidence
(a) of any facts discovered as a result of the confession; or
(b) where the confession is relevant as showing that the accused speaks,
writes or expresses himself in a particular way, of so much of the
confession as is necessary to show that he does so.
(5) Evidence that a fact to which this subsection applies was discovered as
a result of a statement made by an accused person shall not be admissible
unless evidence of how it was discovered is given by him or on his behalf.
(6) Subsection (5) above applies
(a) to any fact discovered as a result of a confession which is wholly
excluded in pursuance of this section; and
(b) to any fact discovered as a result of a confession which is partly so
excluded, if the fact is discovered as a result of the excluded part of the
confession.
(7) ...
(8) In this section oppression includes torture, inhuman or degrading
treatment, and the use or threat of violence (whether or not amounting to
torture).
(9) ...

Beeres v CPS (West Midlands) [2014] EWHC 283 (Admin); [2014] Crim
LR 668

10. Section 76 has been considered upon many occasions by the Courts. I
set out below a summary of the principal points of law of particular
relevance to this case:
i)
A confession is prima facie admissible if relevant to the matter in
issue in the proceedings ....
ii)
Under section 76 for the reliability of a confession to be challenged
all that is required is a representation to the Court that the
confession meets the conditions in section 76(2)(b) ...
iii)
The representation need not demonstrate that the confession was
unreliable: all that needs to be advanced is that the confession
may have been unreliable. Section 76 is concerned to protect
against a risk of unreliability;
iv)
It follows that ... the Court is concerned not with the intrinsic quality
of the confession as evidence but with the manner in which is came
into being and as to the risk of it being unreliable.
v)
The focus of the analysis is the position that pertained at the time of
the impugned confession: cf in the circumstances existing at the
time in section 76.
vi)
The words in section 76(2)(b) anything said or done include acts
and omissions i.e. failures to do something....
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vii)

viii)
ix)

x)

Culpability on the part of the police is not a sine qua non to

exclusion of a confession. For example, as in Gill [2004] EWCA Crim
3245, the police might not at the point in time of the interview
actually know that a detainee suffers from some form of mental
incapacity. The absence of culpability on the part of the police is not
determinative since a confession may prove to be unreliable
notwithstanding.
The assessment under section 76 will take into account whether
there has been adherence to the Codes to PACE.
However not every breach of PACE or the Code will lead to the
exclusion of the evidence in consequence thereof (Gill). If there had
been a breach the Court will consider whether it was a material
breach i.e. whether had the breach not occurred it would have
made a difference.
... section 78 and the common law will enable a Court to examine a
case, including one also engaging section 76, from a perspective of
overall fairness. Hence in principle a tailpiece to any section 76
application as to reliability will be a fairness appraisal.

Wilding (above)
D was charged with sexual activity with a female child under 16. The only
evidence against him was his own admissions in interview with the police.
The defence objected to the admissibility of the admissions on the basis
that D had psychological problems and should have had the benefit of an
appropriate adult [parent, other relative, social worker etc see PACE Code
of Practice C].

11. The applicable principles appear from the decision in Gill [2004] EWCA
Crim 3245 at para 68:
1) When an application is made under section 76 the court does not
consider the reliability of the confession which has been made,
but a hypothetical question. The court must decide whether, in
the circumstances prevailing at the time, there is a likelihood
any confession made at that time was unreliable.
2) The words anything said or done are wide enough to include
an omission, for example, to interview a suspect without the
presence of an appropriate adult, in circumstances where the
Code of Conduct requires one to be present.
3) It may, in some cases, be material to consider whether a breach
of the Code has occurred, but where, as in this case, it was not
known to the police at the time, that the IQ of the applicant
placed him in a category which entitled him to the presence of
an appropriate adult, it is the consequences of the loss of the
protection which the Code intended him to have, not whether
there has been a breach, which is relevant.
4) The relevant question is whether, having regard to the purpose
for which an appropriate adult is required, the absence on this
occasion of the protection which such presence would have
provided is likely to have rendered any confession made at that
time unreliable. In short, would the presence of an appropriate
adult have made any difference? ... [ The question to consider is
would the presence of an appropriate adult, have made a difference? ]
19. ... In so far as the actual confession is considered, care must however
be taken to ensure that the focus remains as it should on the enquiry
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contained in the statute and summarised in Gill proposition (4).... The

answer to any such enquiry must be fact specific.
20. ... There is, we repeat, no criticism of the police in this case, but there
are important features of the duties of an appropriate adult which we
venture to highlight, first and foremost, to ensure that the accused fully
understands his rights and understands the position in which he finds
himself.

it is represented to the court

In our view, a statement by responsible counsel, upon the basis of

documents or a proof of evidence in his possession at the time of
speaking, that this confession was or may have been obtained by
oppression or in consequence of anything said or done which, in the
circumstances at the time, was likely to render it unreliable, is a
"representation" for the purposes of section 76(2):

Dhorajiwala [2010] EWCA Crim 1237

Section 76(2)(a) and 8: oppression
We recognise that the partial definition of oppression given in
section 76(8) emphasises severe treatment: Dhorajiwala (above,
para 26)
Fulling [1987] QB 426: A police officer told D that her lover (and
suspected partner in crime) was having an affair with another woman who
was being held in the next cell. D made a confession. This was admitted
by the trial judge. On appeal the CA considered the meaning of
oppression:
[The] exercise of authority or power in a burdensome, harsh or
wrongful manner; unjust or cruel treatment of subjects, inferiors etc;
the imposition of unreasonable or unjust burdens.
There is not a word in our language which expresses more
detestable wickedness than oppression.
We would find it hard to envisage any circumstances in which such
oppression would not entail impropriety on the part of the
interrogator.
Mushtaq [2005] 2 Cr App R 32
... questioning which by its nature, duration or other circumstances
(including the fact of custody) excites hope (such as the hope of
release) or fears, or so affects the mind of the subject that his will
crumbles and he speaks when otherwise he would have stayed
silent (Lord Carswell).
Paris, Abdullai and Miller (1993) 97 Cr App R 99: The three accused
were charged with murder. M was of low intelligence. Police officers
shouted at him and told him what they wanted him to say despite his
denying involvement in the matter more than 300 times with the
interviews spread over five days. This is an extreme example of
oppression.

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In order to find oppression look for treatment to make ones will crumble
[Mushtaq], impropriety on the part of the interrogator [Fulling], and severe
treatment [Dhorajiwala].
Selig (1992) 141 NLJ 638: CA held the trial judge was correct in
determining whether there was oppression to take into account the fact
that the accused was an experienced merchant banker, intelligent and
sophisticated.
Section 76(2)(b): reliability
Unreliable means cannot be relied upon
92 Cr App R 369
In Fulling (above), Lord Lane said that the
wider than that in section 76(2)(a), so
invalidated under that paragraph even
impropriety under the latter provision.

as being the truth: Crampton

ambit of section 76(2)(b) was
that a confession could be
when there had been no

Barry (1992) 95 Cr App R 384: Lays out what a trial judge must do!
A trial judge must adopt a three-step process:
i)
Identify what was said or done (by the law enforcement officer)
ii)
Ask whether what was said or done was likely in the
circumstances to render unreliable a confession made in
consequence, the test being objective; and
iii)
Ask whether the prosecution has proved beyond reasonable
doubt that the particular confession was not obtained in
consequence of the thing said or done.
Roberts [2011] EWCA Crim 2974
D confessed that he had stolen an item from his employer in response to a
promise that it if he did so the matter would be dealt with internally.
When, contrary to this promise the police were called, D did not recant his
confession. He was convicted and on appeal argued that the confession
was inadmissible because it failed section 76(2)(b). It was argued by the
Crown that Ds silence was a powerful factor going to establish the
reliability of the confession. Court of Appeal did not agree. The Court of
Appeal applied the Barry three stage test and said:
In short, in consequence of such a plain inducement ot confess,
any confession was likely to be rendered unreliable.
Subsequent silence when waiting for the police could not alter that.
(Para 17)

Thus the admissibility of a confession can be challenged in four ways:

1. Section 76(2)(a) PACE Oppression
2. Section 76(2)(b) PACE Reliability
3. Section 78 PACE Fairness
4. At Common law (whether its prejudicial effect outwights its probative value)

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The vulnerable suspect

Beeres v CPS (West Midlands) [2014] EWHC 283 (Admin); [2014] Crim
LR 668
D said that when she was interviewed at a police station she was not
given proper advice as to the availability of a duty solicitor [Code C 6.1],
and that, in any event, the fact of her interview whilst drunk and/or sleep
deprived made her confession in the course of the interview unreliable.
McGovern (1991) 92 Cr App R 228; [1991] Crim LR 124: D had a low IQ.
She was wrongfully denied access to a solicitor and made a confession
prior to being allowed to see him. She made further admissions at a
second interview which was held in compliance with PACE and the COP.
Were the interviews admissible?
Court of Appeal Held: The earlier breaches of PACE and COP in the first
interview rendered the second interview inadmissible. The very fact that
the admissions had been made in the first interview was likely to have an
effect upon D during the course of the second interview. Both interviews
should have been excluded under section 76.
... even if the confession given at the first interview was true, as it
was later admitted to be, it was made in consequence of her being
denied access to a solicitor and is for that reason in the
circumstances likely to be unreliable.
Note:
Section 78 PACE could also have applied
The court questioned whether it was a satisfactory consequence
that a true confession should be excluded because of a breach of
PACE but added we are satisfied that is the effect in law.
Everett [1988] Crim LR 826
D was interviewed by the police and a confession obtained. Police did not
appreciate D was of low intelligence and entitled to presence of
appropriate adult. At his trial, the confession was admitted and D
consequently pleaded guilty.
CA held: The confession was wrongly admitted: it was not what the police
officer thought about the mental condition of the D, but what was the
actual mental condition of D and the likely impact of what was said or
done upon him.
Wilding (above)
D was charged with sexual activity with a female child under 16. The only
evidence against him was his own admissions in interview with the police.
The defence objected to the admissibility of the admissions on the basis
that D had psychological problems and should have had the benefit of an
appropriate adult (see Code C 11.15).
Other issues:
The unreliability must relate to something external to the D and not to
things said or done by the accused.

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Goldenberg (1989) 88 Cr App R 285: In Goldenberg the offer came from

the defendant. It was stated that anything said or done is limited to
things external from the person!
In our view it necessarily follows that anything said or done is
limited to something external to the person making the confession
and to something which is likely to have an influence on him.
Wahab [2003] 1 Cr App R 15 D suggested a deal with the police. The
police made no promises. D also claimed that the advice given to him by
his solicitor whilst D was being subject to a series of interviews at a police
station had fallen below the proper standard of professional competence.
The CA held:
D was uninfluenced by anything said or done by the police
Advice properly given by a solicitor did not normally provide a basis
for exclusion of a subsequent confession under section 76(2)(b).
One of the duties of a legal advisor was to give his/her client
realistic advice. That did not mean the advice had to be aimed at
getting the client off or simply making life difficult for the
prosecution. It had to be sensibly robust considering the advantages
the client might derive from evidence of remorse and a realistic
acceptance of guilt, or the corresponding disadvantages of a no
comment interview.
prosecution proposes to give in evidence
e.g. evidence of police impropriety emerges after the admission of the
confession:
Sat-Bhambra 88 Cr App R 55: section 76 ceases to be applicable once the
confession has been given in evidence: but the trial judge may
Direct the jury to disregard the statement
Direct the attention of the jury to the matters which might affect the
weight to be attached to the statement
Discharge the jury
Power of the trial judge
The court has the power under section 76(3) to require the prosecution to
prove that the confession was not obtained as mentioned in section 76(2):
see e.g. Dhorajiwala.
Note: Everytime there is an out of court statement, define what a
confession is; as per s82 PACE
Confessions and the co-accused
Andy, Brian and Clive are charged with murder. All deny the charges.
Clive made an out of court statement stating that he had not
participated in the murder and that Brian was the killer.
Brian made an out of court statement in which he admitted he
was the killer.
Clive and Brian do not give evidence at the trial. Andy wishes to adduce
evidence of the statements by Clive and Brian.
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Clives statement is not admissible under s76A because it is not a

confession.
Must also consider the hearsay issue. (Out of court
statement could be a confession, if not, it may be argued that it is
admissible under the hearsay rule).
s.76A PACE Confessions may be given in evidence for co-accused
(inserted by s.128 Criminal Justice Act 2003) s76A will ONLY apply where
there has been a confession

(1) In any proceedings a confession made by an accused person may be

given in evidence for another person charged in the same proceedings (a
co-accused) in so far as it is relevant to any matter in issue in the
proceedings and is not excluded by the court in pursuance of this
section. Applies in situations where there are co-accused and one coaccused wants to have an out of court confession admitted by the other
co-accused
(2) If, in any proceedings where a co-accused proposes to give in evidence
a confession made by an accused person, it is represented to the court
that the confession was or may have been obtained(a) by oppression of the person who made it; or
(b) in consequence of anything said or 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,
the court shall not allow the confession to be given in evidence for the coaccused except in so far as it is proved to the court on the balance of
probabilities that the confession (notwithstanding that it may be true) was
not so obtained.

Sliogeris [2015] EWCA Crim 22

Sliogeris (D1) and Staponka (D3) were jointly charged with murder and
blamed each other for the crime (Cut throat defence). Pocius (D4),
another co-accused, made two out of court statements concerning the
killing. [Staponka wants to have Pocius out of court statements admitted]
13. section 76A only applies where there is a confession and that is defined
by section 82 of PACE as follows:
"Any statement wholly or partially adverse to the person who made it;
whether made to a person in authority or not; and whether made in words
or not.
1 The judge focused upon section 76A first. He considered whether the
statement made by Pocius constituted a confession within the meaning of
section 82(1) and he took the view that it clearly was, at least, a partial
confession, because Pocius was admitting to being present in the flat
when the deceased was beaten to death. That was an admission against
interest. (Pocius confessing to being there during the killing, was
considered by trial judge to be a partial confession this was a statement
against interest)
1 He was satisfied - and this is not disputed - that the evidence was plainly
relevant to an issue in the proceedings, namely who had attacked the
deceased. He identified what he considered to be the key question in the
following way:

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1
1

"Can the confession of D4 (Pocius) that includes identifying D1 (the

appellant) as the man responsible for the murder of the victim be
relied upon by D3 (Mantas Staponka) under section 76(A)?"
He was satisfied that the wording of section 76(A) was broad enough to
permit the confession to be adduced in those circumstances.
We first consider the judge's approach to section 76A. The first issue is
whether the evidence sought to be adduced is, properly analysed, a
confession. We accept that the statement by Pocius that he was present is
a statement against interest and may be said to fall under the terms of
section 82. However, that is not the statement which the co-accused,
Staponka, wishes to have admitted in evidence. He is relying upon another
comment made by Pocius, which is logically quite distinct from his
admission of his presence, namely that the appellant (D1) had committed
the offence. That is an exculpatory statement and does not itself amount
to a confession (statement did not fall under s82 PACE and therefore does
not apply under s76A); nor is it so inextricably linked with the (partial)
confession to justify it being treated in that way.
This conclusion is supported by the decision of this court in McLean [2007]
EWCA Crim 219 [2008] 1 Cr App R 11. In that case three co-defendants
were charged with killing the deceased. He received a single stab to the
heart. They were all alleged to have been part of a joint enterprise. At trial
two of the co-defendants, M and P, ran cut throat defences and blamed
each other for the stabbing. As in this case H did not give evidence nor did
he answer questions in interview but he made a statement to a police
officer that he had been present facing the deceased when P had stabbed
him.
This was again therefore an admission of presence but a denial of any
direct involvement and an exculpatory statement purporting to identify
the co-defendant as the person who had struck the fatal blow. The Court of
Appeal noted that section 76A did not apply, adding that it had never been
suggested that it did. As Hughes LJ put it (para. 16) "What M wanted in
evidence was not a confession by H but an out of court accusation by H of
P".
This is a far cry from cases like Myer [1998] AC 224 or the more recent
case of Nazir [2009] EWCA Crim 213. In each of those cases a defendant
admitted in an out of court statement that he alone had attacked the
deceased although at trial he alleged that it was his co-defendant. In each
case there were cut-throat defences. As the court pointed out in Nazir, that
is an admission that he acted alone which in turn was highly important
evidence for the co- defendant who had denied carrying out the attack. In
such cases the confession both inculpates the maker of the statement and
by implication exculpates the co-defendant. It is a classic example where
section 76A can be invoked by the co-defendant.

Must find that there is a confession within meaning of sections 82 for s76A to
apply. Moreover, saying that it wasnt me, someone else did it, is not a
confession, rather it is an exculpatory statement and therefore s76A will not
apply.

Challenging the admissibility of a confession:

Beeres v CPS (West Midlands) [2014] EWHC 283 (Admin)

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9. The Court has wide powers to exclude confession evidence under

sections 76 and 78 PACE 1984 and under common law....
i)
Section 76(2)(a)
ii)
Section 76(2)(b)
iii)
Section 78
iv)
At common law
Facts discovered as a result of an inadmissible confession: the
fruit of the poisoned tree
The common law rule was that facts discovered as a result of an
inadmissible confession were admissible provided the source of the
information (i.e. the inadmissible confession) was not given: Cannot
disclose at trial the confession
S76(4)-(6)
... there is an obvious anomaly in treating an involuntary statement as
inadmissible while treating as admissible evidence which would never
have come to light but for the involuntary statement. But this is an
anomaly which the English common law has accepted, no doubt regarding
it as a pragmatic compromise between the rejection of the involuntary
statement and the practical desirability of relying on probative evidence
which can be adduced without the need to rely on the involuntary
statement. (Lord Bingham in A v Secretary of State for the

Home Department [2005] UKHL 71 para 16)

Admissibility of confessions/information obtained from third parties
abroad
Note the importance of mutual legal assistance.
A v Secretary of State for the Home Department (above)

The principles of the common law, standing alone, in my opinion compel

the exclusion of third party torture evidence as unreliable, unfair, offensive
to ordinary standards of humanity and decency and incompatible with the
principles which should animate a tribunal seeking to administer justice.
But the principles of the common law do not stand alone. Effect must be
given to the European Convention, which itself takes account of the all but
universal consensus embodied in the Torture Convention. The answer to
the central question posed at the outset of this opinion is to be found not
in a government policy, which may change, but in law (Lord Bingham at
paras 1 and 52).

Don is charged with a series of murders. Torture is used to obtain a confession

from him in which he is forced to give information as to the location of the
murder weapon. The weapon is located and Dons fingerprints are found on it.
1) Is the confession admissible?
2) Is evidence regarding the weapon admissible?
In order to answer this question must consider the following:
S76(2)(a)
S76(2)(b)
S78
Common Law
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S76(4) states that the fact that the confession is not admissible, it does not
affect the admissibility of the evidence which was subsequently obtained from
the confession. Effectively the doctrine of fruit of the poisonous tree does not
apply in this country.

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