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Admissibility PACE section 76 1. The Police and Criminal Evidence Act 1984, s.76, provides that a disputed confession cannot be used in evidence against an accused person unless the prosecution proves beyond reasonable doubt that it was not obtained: "by oppression of the person who made it; or 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". 2. For the purposes of this section, a confession includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise. 1 The issue of whether a statement has been obtained by oppression or in circumstances which make it unreliable is always a question of fact in all the circumstances. 3. If a defendant wishes to challenge the admissibility of a confession the court will usually decide the issue by holding a mini-trial (known as a `voir dire') where both sides can call evidence to support their argument on admissibility. Oppression 4. Oppression includes torture, inhuman or degrading treatment, and the use or threat of violence. 2 It should be given its ordinary dictionary meaning: 3 "exercise of authority or power in a burdensome, harsh, or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc, or the imposition of unreasonable or unjust burdens." 5. An interview that lasted 13 hours, during which the police shouted at the suspect what they wanted him to say but where the suspect denied involvement over 300 times was held to be oppressive. 4 In contrast, a 75 minute interview conducted at a slow pace which gave the suspect time to consider his replies, in which police officers had raised their voices, but not shouted, was held not to have been oppressive. 5 The court is entitled to consider the character and experience of the suspect in deciding what is oppressive or likely to make a confession unreliable. 6 Unreliability 6. Examples where confessions have been held to be made in circumstances making them likely to be unreliable include where a suspect was not given proper rest, 7 where a suspect was not cautioned at the start of an interview, 8 and where the police failed to make a proper record of an interview in breach of the Codes of Practice 9. 7. A confession may be held to be unreliable if it was made as a result of an inducement. 10 This will include saying anything that makes the suspect believe that confessing will lead to more favourable treatment, or anything that sounds like a promise for the future. Exclusion of evidence on the ground of unfairness - PACE section 78 8. PACE section 78, provides that any evidence 11 may be excluded 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 the proceedings that the court ought not to admit it." 9. Section 78 was drafted in broad terms to allow its application in a variety of situations that could not be anticipated. There is no definitive case law defining/explaining the scope of section 78. When an application to exclude the evidence is made, the court will approach the application in two stages: 10. Firstly, the court will examine "the circumstances in which the evidence was obtained". This deliberately broad phrase will allow the court to consider, if necessary, the entire backdrop to the evidence and how it was obtained. It is therefore important that you keep notes in your notebook of the background to the investigation and particular circumstances in which evidence is obtained. 11. Secondly, they will consider whether admitting the evidence would have an adverse effect upon the fairness of the proceedings. When considering the issue of fairness, the court must strike a balance between what is fair to the prosecution and what is fair to the defence. 12 12. Although section 76 of PACE provides for the exclusion of confessions, this does not affect the ability of the court to exclude confessions if they meet the test set out in s.78. 13 Evidence obtained by a "significant or substantial" breach of PACE or one of the Codes is likely to be excluded, 14 as is a confession obtained by a trick. 15 13. There is no requirement for the investigators to have acted in bad faith before evidence is excluded and good faith by investigators will not excuse serious breaches of PACE and the codes of practice. Where there is bad faith on the part of the investigators, this will usually lead to the exclusion of evidence. 16 You should ensure that you are familiar with the terms of the codes. Discretion to exclude unfair evidence: common law 14. The court also has power at common law to exclude evidence where its probative value is outweighed by its prejudicial effect. This has been held to include where "if it is necessary in order to secure a fair trial for the accused." 17 Evidence obtained as the result of a confession ruled inadmissible under PACE section 76 15. Where a confession has been obtained which is inadmissible under s.76, that does not affect the admissibility of any facts discovered as a result. 18 However, you cannot show that those facts were discovered as the result of the inadmissible evidence. 19 The information obtained in that confession may be used to obtain other evidence. However, the court may exercise its discretion under s.78 to decide that this evidence also should not be admitted.