WEEK 4 - CONFESSIONS, SILENCE
AND ENTRAPMENT (Silence (Out of Court…
WEEK 4 - CONFESSIONS, SILENCE
Defined in: s82(1) PACE
Strictly speaking, a confession is a form of hearsay, however in :red_flag: Warwickshall a confession is said to be deserving of the highest credit, as it is assumed to come from a strong sense of guilt, therefore is admitted as proof of the crime.
There is no requirement in the definition, that the confession be in a particular form, a confession can be made to anyone.
:red_flag: Sharp (mixed statements): if the statement by the accused is partly inculpatory (establishes guilt) and partly exculpatory (doesn't establish guilt), both parts must be taken together as one confession.
When is a confession admissible?
:red_flag:Hulbert: the confession should be based on known facts.
:red_flag:Chatwood: However, this does not mean that a confession must always consist of fact rather than opinion. If the opinion would be admissible as non-expert opinion it would not change the admissibility of the opinion.
A confession is only admissible against the person who made it. A confession of one D is generally no evidence against a co-D.
:red_flag: Loban: Judge cannot edit confession if D does not agree (in the case of 2 Ds, one confession one not) so the judge can:
1) Order "severance" (a separate trial), but this is not generally in the interest of justice (:red_flag:Gunewardene).
2) Failing that, the best the J can do is direct the jury that the parts in the confession are not admissible against the non-confessing defendant.
:red_flag:Blake and Tye: The exception to this principle is that the statements of the confessing D made in persuance (in search of) of a common purpose is evidence againsts the non-confessing D too.
Another exception: s76A PACE:
Confession can be given in evidence against the non-confessing D.
- Will be excluded as a matter of law IF s76(2) is breached (rules to not allow a confession), or
- May be excluded as a matter of discretion un s78
Oppression: s.76(8) defines oppression
:red_flag:Fulling: oppression should be given its ordinary dictionary meaning.
:red_flag:Paris: confession obtained through oppression
:red_flag:Seelig: wanted confessions excluded through s76(2) but wasn't deemed to be in breach of the rules. Unreliability: so widely drafted it leaves a lot of latitude to the court.
:red_flag:Barry provided guidelines to determine unreliability:
Case Law on Unreliability:
- Identify the thing said or done, which must be done externally to the D, this requires J to take everything into account that was said and done by the police.
- Was what was said and done likely in the circumstances to make the confession unreliable (this is an objective test).
- Has P proved (b.r.d) that the confession was not obtained in consequence of the thing said and done.
:red_flag:Kenny: confession should not have been admitted as it was unreliable (D needed an appropriate adult present).
Procedural Points - Voir Dire:
- Although objective, the mental, physical or personality abnormalities of D may be relevant. Breaches of Code C and E can amount to "things done" therefore making confession unreliable, but that is not always the case. This is because there needs to be a casual link between the thing done (or omission) and the confession. Even though something may have been said or done that resulted in a confession, the court must also consider the likelihood of unreliability.
J will decide up the admissibility of a confession by holding a VD. Defendant should not be asked in the VD if the confession is true or not.
:red_flag:Wong Kam-ming: D's answers during VD are not admissible during the main trial IF the confession is excluded.
:red_flag: Mushtaq: If the confession is admitted then defence can ask the same questions as those in the VD when challenging admissibility.
s76(4) and (5) - the effect of excluding a confession.
- when a confession is excluded, any fact discovered as a result of the confession are admissible. But it cannot be proved that the facts were discovered as a result of something said by D.
s76(4)(b): :red_flag: Voisin
Discretion to Exclude a Confession:
- Common law: J always has discretion to refuse to admit evidence if, in their opinion, its prejudicial effect outweighs its probative value. However, they have no discretion to refuse to admit relevant admissible evidence on the grounds that is was obtained by improper or unfair means.
- s78 PACE provides a wider discretion which includes looking at how the evidence was obtained. Factors that will be considered will be whether the Codes of Practice have been breached or any other guidance.
:red_flag:Mason: when the police lie and tell a suspect they have evidence which they did not (fingerprints)
:red_flag:Sparks: the absence of a caution when it should have been administered will normally amount to bread of code.
- However, just because there is a breach does not mean that the confession would be inadmissible, it is all a question of fact and degree in the circumstances of the case.
Confessions Obtained after an Unjustified Refusal of Access to Legal Advice:
s58 - Right to Legal Advice
- Deliberate obstruction of rules usually leads to exclusion
:red_flag:Parris: But, if a breach was not deliberate and the D was not prejudiced (disadvantaged) by the absense of legal advice the court is entitled to decline to exclude under s78.
- A confession can be relied on even if it was made before the D was given an opportunity to obtain legal advice (its all a question of fairness and depends on the circumstances of the case itself).
:red_flag:McGovern: D was 19 y/o and 6 months pregnant with limited intelligence, confession was excluded.
:red_flag:Dunford: D had previous convictions, so would have been aware of their rights and the J concluded that legal advice would probably have caused him to beahve no differently, confession not excluded.
Drink drivers: police will not delay for legal advice
Out of Court Silence:
Common Law: inferences could not be drawn from Ds silence when faced with accusations and questioning occuring outside of court.
This was changed by s34 Criminal Justice and Public Order Act (CJPOA) 1994:
If the accused refuses to answer questions before trial and answers them later in court, it may harm their defence and the court may draw adverse inferences from the failure.
The right to silence still remains as common law and s34 CJPOA preserves this, however under certain conditions, inferences can be made from Ds silence.
:red_flag:Argent: a fact that D could reasonably be expected to mention means that a subjective test should be followed meaning inferences are allowed to be made (D gave no comment in interview then at trail said they left the scene before the crime).
:red_flag:Conrad and Conrad: Legal advice to remain silent when being questioned does not mean that the jury didn't draw inferences, the J must direct the jury on how to assess the effect of this legal advice.
s34 does NOT apply to silence at an interview that takes place in breach of the codes.
:red_flag:Moshaid: s34 requires that D must have failed to mention some fact that he later relies upon.
:red_flag:Bowers and Others: facts can be relied on even if the D does not put it forward at trial.
Directing the Jury:
:red_flag:Bersa - must be a fair balance between telling the jury of a Ds right to remain silent and telling the jury that D has a choice not to rely on those rights. Jury cannot convict on inferences alone. Can the jury be sure that D remains silent due to legal advice or because D has no satisfactory explanation to give.
s36: makes it possible for court to draw inferences from Ds silence when challenged about the presence (at the time of arrest) of substances or marks.
s37: D not offering to give an account as to why they were at a certain place.
Refusing to give body samples and DNA:
For intimate body samples (blood semen, urine, pubic hair, dental impressions, swab), D must consent to give, if refuses then adverse inferences can be drawn: s.62(10) PACE
Inferences from Silence Inside of Court:
s35(3) CJPOA 1994:
Jury may draw inferences of guilt from the failure of D to give evidence, or his refusal (without good cause) to answer any question.
:red_flag:Cowan: Direction to the Jury:
Jury must not assume guilt just because D omits to testify, any inference cannot on its own prove guilt. If jury are satisfied that D did not testify due to a sensible reason being that D had no answer to the charge, they may draw inferences against D in additional support of the prosecution case.
:red_flag:Kuruma: There is no law that evidence (other than confessions) must be excluded simply because it was obtained improperly.
:red_flag:Sang: "the court is not concerned with how the evidence was obtained".
Evidence obtained by undercover police before the commission of an offence is generally NOT excluded under s78 PACE unless the case is clear entrapment.
:red_flag:Marshall: officers purchasing alcohol sold without a licence to sell.
:red_flag:Christou: jewellers shop set up to buy and sell stolen items.
:red_flag:Mason: police officer lied to a suspect and solicitor abour incriminating evidence which court of appeal found should have resulted in exclusion of subsequent evidence.
- the use of evidence obtained by entrapment may deprive D of a right to a fair trial (Art 6).
- the only proper purpose of police participation is obtain evidence of criminal acts which they suspect someone is about to commit or already committed. It is is not to tempt people to commit crimes in order to expose bad character.
- the police activity in :red_flag:Williams was justified because it was an authorised investigation into an actual crime.
:red_flag:Loosely was used by Court of appeal to disprove the plea of entrapment in the case of :red_flag:Jones, where police texted a number left in a public area and D arranged to meet.