SQE 1 - Criminal Practice (Principles and Procedures to Admit and Exclude Evidence)

What is evidence used for?

Evidence is used to prove, or disprove, a fact/matter in issue (ie a contested fact between parties) and can take many forms.

What is the burden of proof?

The burden of proof is the term given for the responsibility or obligation to prove, or disprove, a particular matter which is in dispute. Burden of proof can either be legal or evidential.

What are the two types of burden of proof?

1.Legal Burden → the burden to prove a matter (or fact) in issue between the parties
2. Evidential burden → the burden to make an issue 'live' (ie make an issue one that can considered by the arbiter of fact).

What are examples where prosecution possess the burden of proof?

- Prove a defendnat's guilt (legal burden)
- Disprove any relevant defences (e.g. that the defendant was not acting in self-defence)(legal burden)
- Prove a confession was obtained reliably/not through oppression (if the prosecution seeks to introduce a confession) (legal burden)

What are examples where defence possess the burden of proof?

- Raise sufficient evidence to make an issue live (e.g. raise sufficient evidence to demonstrate that the defendant may have acted in self-defence) (evidential burden)
- Prove any matters that the law reverses on them

Who typically bears the legal burden?

Prosecution, however legal burden can pass to defence in rare exceptions.

What is particular examples where the legal burden passes to the defence?
- Para 2 of 9.2.1 ULaw

1. A reverse burden applies in respect of the partial defence to murder of diminished responsibility → unlike self-defence, it is for the defendant to prove the defence of DR

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Whilst the defence may bear the evidential burden of making an issue 'live' (e.g self defence), the prosecution will continue to possess the legal burden of disproving any issue raised by the defence (eg that the defendant did not act in self-defence).

What is the standard of proof?

The standard of proof is the term given for the degree or level required to satisfy the arbiter of fact that a matter has been proved (ie a party is said to have discharged their burden to prove a matter when the arbiter of fact is satisfied that it has been proved. The standard of proof differs in degree depending on which party bears the burden of proof.

What are the two standards of proof that apply to criminal proceedings?

1. Beyond reasonable doubt/so that you are sure
2. Balance of probabilities

What is the Beyond reasonable doubt/so that you are sure standard of proof?

Known as the 'criminal standard'
- The arbiter of fact must be 'sure' that the matter has been proved
- Higher standard of proof (applies only when the prosecution bears a burden of proof)

What is the Balance of probabilities standard of proof?

Known as the 'civil standard'
- The arbiter must be satisfied that it is 'more likely than not' that the matter has been proved
- Lower standard of proof (applies anytime when the defence bears a burden of proof).

James is charged with murder, having picked up a heavy vase and thrown it at Mark, causing a fractured skull and ultimately his death. James, however, argues that he was acting in self-defence as he perceived Mark to be an immediate threat to his safety. Alternatively, Hames argues the defence of diminished responsibility on the basis that he suffers schizophrenia which substantially impaired his ability to form rational judgment.

What are the relevant burdens and standards of proof in this judgment?

The prosceutions bears the legal burden to satisfy the jury that James unlawfully and maliciuly wounded Mark with intent, and must discharge this burden beyond reasonable doubt (or make the jury sure that all the elements of the defence are present). In addition, as James has raised self-defence, the prosecution must, in order to prove their case, demonstrate that James did not act in self-defence and this, in effect disprove his defence. Legal burden of proof falls on them.

The burden of proof of James is complication. In respect of self-defence, James possesses the evidential burden to rasie sufficient evidence to make the issues of self-defence live, however it is not for James to prove self-defence. Therefore the burden must be satisifed on the balance of probabilities.

However, in respect of the defence of diminished responsibility, James will bear a legal burden to prove this defence (ie prove all of the elements of the defence). Whilst James possesses this reverse legal burden, the standard of proof is the civil standard (balance of probabilities).

What is visual identification evidence?

Visual identification evidence encompasses any evidence which purports that a witness has positively identified a suspect (e.g. ID parades, witness statements and dock identification).

Visual identification evidence will typically occur where the issue of the case is the one of identity.

What are the two stages that a witness can identify a suspect in criminal proceedings?

1. Pre-trial identification
2. Dock identification at trial

What is pre-trial identification?
SPLIT INTO TWO

In many cases a witness may purport to positively identify a suspect who becomes a defendant. This evidence can stem from:
- witness statements with a description of the suspect
- carrying out identification procedures

It is common for visual identification evidence to be accompanied by other evidence which the prosecution will ague shows the defendant guilty. However, it can still be the only form of evidence the prosecution relies on (e.g. witnesses may be unable to remember facts at trial)

What is dock identification?

This is where a witness positively identifies for the first time an accused who is sitting in the dock at trial.

When are prosecution permitted to invite a witness to identify a defendant through dock identifciation?

The prosecution are not permitted to invite a wintess to identify the defendnant through dock identification if that particular witness has not previously identified the defendant at an identify procedure unless:
- it was impractical or unnecessary for the witness to carry an ID procedure or
- there are exceptional circumstances.

What should the judge do when a witness, without invitation makes a dock identification?

The judge may need to warn the jury against giving the dock indication any weight.

What guidance should be followed if there is a dispute between the prosecution and defence as to visual identification evidence?

Turnball direction guidance should be followed.

What is Turnball direction?

R v Turnball [1977] established guidelines for judges in trials where identification evidence is disputed. A direction given to the jury which follows the guidance from Turnball is therefore known as a Turnball direction.

Applies to both jury and magistrates' court.

When identification causes issue who must determine the quality of the evidence under Turnball guidance?

The task falls on the judge to determine thr quality of evidence. The quality of the evidence will determine the course of conduct to be taken by the judge.

What should the judge consider when assessing the quality of evidence?

1. The length of time a witness had the defendant under observation
2. Whether the observation was impeded by anything (e.g. can the witness see the defendant entirely or is it a partial identification due to some obstruction of sight?)
3.The conditions of the identification (eg distance, lighting, weather)
4. whether the defendant was known to the witness previously
5. The length of time which had elapsed between the witness' original observation and further identification to the police
7. Whether or not there are any significant discrepancies between a witness' description of the defendant and the defendant's actual appearance
8. Whether any significant discrepancies have been provided to the defence

What are the different circumstances a judge can find concerning quality of evidence/of poor quality?

1. Identification is of good quality
2. Identification is of poor quality, but supported by other prosecution evidence (e.g. in the case of theft, the stolen property is found in D's home
3. Identification is of poor quality and unsupported.

What is the course of action for the judge when identification is: of poor quality and unsupported?
- Turnball Guidance

The Judge should invite submissions from the advocates and, if appropriate, withdraw the case from the jury at the conclusion of the prosecutions' case.

The judge will direct the jury to acquit the defendant in this case.

What is the course of action for the judge when identification is: of good quality/of poor quality but supported by other prosecution evidence?
- Turnball Guidance

When a case depends swholly/substantially on whether an identification of the defendant is correct, a Turnball direction should be given to the jury to warn them of the need for caution before convicting after relying on identification evidence.

A Turnbball direction should given whether quality is good or poor (but supported by other evidence). In both circumstances, the judge should direct the jury to:
- the fact that even convincing witnesses can be mistaken, and that there may be a number of witnesses called who could be mistaken
- the requirement to examine the circumstances closely in which each identification was made by each witness

Are Tunball directions required in any case including witness identification?

No, it is only required when the prosecution's case depends wholly or substantially on visual identification.

Mark is charged with burglary, contrary to s9 Theft Act 1968, and is being tried in the Crown Court. The Prosecution alleges that Mark stole items of expensive stationery from his employer's premises. The police searched Mark's office and home and could not find the items, but Mark cannot provide an alibi. The prosecution is relying substantially on a witness, James, who purports to have seen Mark take the items. James picked out Mark in an ID procedure. Whilst giving evidence, James states that he saw someone of Mark's height and hair colour, wearing similar garments to what Mark wears, take the items from the stationery cupboard. In cross-examination, James admitted that his view of the person was obscured by frosted glass and the artificial lights were not turned on.

Will a Turnball direction be necessary in this case?

It is likely that a Turnball direction will be given in this instance. The reason for this is that the prosecution is relying substantially on James' visual identification evidence, and it appears that James' evidence is the only evidence which links Mark to the alleged offence. Has there been no previous identification by James, it would be likely this case would be withdrawn from the jury due to the lack of evidence to support a conviction.

Despite defendant's having a right to silence, what can be drawn from this?

The individual's silence or failure to account may lead to inferences being drawn.

What are inferences?

A court may draw any inferences that 'appear proper' from a defendant's silence. Such inferences may include whether the defendant was preventing self-incrimination, whether there is a case to answer, or the defendant had no explanation. The term 'adverse inferences' is often used to demonstrate that the court may draw a negative conclusion from the defendant's silence.

What are the different provisions under the Criminal Justice and Public Order Act 1994 concerning right to silence?

1. Silence when being questioned or charged → s 34
2. Silence at trial → s 35
3. Silence in respect of objects, substances or marks →
s36
4. Silence as to their presence at a particular place →
s 37
5. Statutory interpretation matters → s38

Silence when questioned or charged

If a defendant is arrested and questioned under citation, and they fail to answer a question but later put forward a fact or account at trial that could have been given in response to the original question, inferences may be drawn.

When can adverse inferences be drawn at trial regarding silence when questioned/charged (Argent factors)?

Six conditions must be met:
1.Criminal proceedings against a person for an offence have started
2. The alleged failure occurred before or on charge
3. The alleged failure occurred when the defendant was questioned by a constable
4.The constable's questioning was for the purpose of discovering how and who committed the alleged offence
5.The defendant relied on a fact as part of their defence that was not mentioned to a constable when questioned
6. It was reasonable, in the circumstances, for the defendant to have mentioned the fact to a constable when questioned before or on charge.

Silence at trial/Failure to testify at trial → s 35

At the close of the prosecution's case, the defendant must choose whether to give evidence. They are not obligated to do so so, and have the right to refuse to give evidence. However a failure to do so may result in adverse inferences being drawn.

When can adverse inferences be drawn at trial regarding silence failure to testify at trial?

The court is permitted to draw inferences if a defendant doesn't testify at their trial, or chooses to give evidence, but refuses to answer a question put by an advocate 'without good cause'.

What is meant by 'without good cause'?

This has been interpreted by case law to mean that the defendant's silence can only be sensibly be attributed to the defendant having no answer, or no answer that would stand up to cross-examination.

Can inferences be drawn when a defendant fails to testify because of their physical or mental state?

No, where a defendant's physical or mental state would make it undesirable for them to give evidence, inferences cannot be drawn.

What must the court satisfy at the conclusion of evidence when a defendant fails to testify?

Court must satsify that:
- the defendant was given the opportunity to testify, and
- the defendant understood the court's ability to draw inferences from their failure to testify or refusal, without good reason, to answer a question put to them.

Do each of the CJPOA provisions link together?

Whilst the provisions often overlap, they are separate. e.g. if a defendant remains silent at trial, no inferences will be drawn under s 34 (because they have not relied on a matter not previously mentioned). However s 35 may permit inferences to be drawn in these circumstances.

Silence in respect of objects, substances or marks →
s36

If, or arrest, a suspect is asked to account for a particular object, substance or mark and fails or refuses to give an explanation, inferences may be drawn from that failure. The object, substance or mark is something which is found on their person, in or or on their clothing, or in their possession, or in any place they are at the time of arrest.
e.g. - a suspected stolen item, a packet of suspected drugs or an injury

4. Silence as to their presence at a particular place →
s 37

If, on arrest at a place at about the time the alleged offence was committed, a suspect is asked by a constable to account for their presence at the particular place, but fails to do so, inferences may be drawn from that failure.

Is there a restriction on when s36 and s37 inferences can be drawn?

No, unlike s 34 which restricts adverse inferences (ie only applies where the defendant later relies on a matter at trial), there are no restrictions for ss 36 & 37. The mere failure to account is, in itself, a reason to draw adverse inferences.

What are the only circumstance inferences can be drawn under ss 36 and 37?

Inferences can only be drawn if when the defendant is arrested:
- a constable reasonably believes that the object, substance, mark or presence at a particular place relates to the offence, and
- a special warning has been issued.

What is a special warning?

A 'special warning' must be given to the suspect in ordinary language. They must be told the following:
- What offence is being investigated
- What fact they are being asked to account for
- That this fact may be due to them taking part in the commission of the offence
- That a court may draw such inferences as appear proper if they fail or refuse to account for the fact
- That a record is being made of the interview and it may be given in evidence if they are brought to trial

5. Statutory interpretation matters → s38

Section 38 provides some crucial interpretation to the right to silence previsions.
- A defendant cannot be convicted of an offence solely on an inference being drawn (i.e. additional evidence is needed to satisfy the court of the defendant's guilt)
- Inferences cannot be drawn from s34, 36 ad 37 where the defendant was at an authorised place of detention (ie police station) at the failure to account for a particular fact, BUT had not been allowed an opportunity to consult a solicitor before being questioned or charged.

Does the restriction of drawing inferences extend past an opportunity to consult a solicitor?

This restriction only extends to the opportunity to consult a solicitor. If the defendant is offered the opportunity byt declines, adverse inferences may be drawn where appropriate.

What is allowed when a witness is unable to give evidence in court?

An application may be made to adduce their evidence.

What is hearsay evidence?

Hearsay evidence is where evidence is presented to the court by the party's advocate and not the person who originally made the evidence out of court. e.g. an advocate may read out a witness statement instead of the person who made the statement attending and giving live evidence.

Is hearsay evidence typically admissible in criminal court proceedings?

Due to the limited ability to test hearsay evidence, it is typically inadmissible . Therefore when making an application to adduce hearsay evidence, applicants must consider what forms of evidence can be hearsay and the grounds for hearsay evidence.

What are the conditions for evidence to be adduced as hearsay evidence?

Statute provides guidance that the evidence is:
- a statement (made by a person)
- not made in oral evidence; and
- tendered to prove a matter stated.

What is a statement made by a person?
- Hearsay evidence conditions

A statement is a representation of any fact or opinion made by a person by whatever means that includes a representation made in a sketch, photofit or other pictorial form.

The statement must be:
- Made by a person (ie not a computer)
- be made by whatever means (e.g. orally, writing, via conduct)

What is not made in oral evidence?
- Hearsay evidence conditions

Hearsay is commonly referred to when dealing with statements made out of court.
e.g. a witness at trial repeating what had been told by another person out of court.

Instead, it is evidence that is based on a statement made by someone outside of the courtroom, and it is being introduced indirectly.

What is tendered to prove a matter stated?
- Hearsay evidence conditions

The statement must also have been made to prove a matter stated.

What is 'matter stated'?

The person who makes a statement must do so with the intention to either:
- cause someone to believe what is being represented in the statement is true, or
- cause someone or something to operate on the basis that what is being represented in the statement is true.

If the statement was made for multiple reasons including one of the intentions required for matters stated, is the evidence excluded from the definition of hearsay?

No, whilst there may be more than one intention as to why the statement was made,, the statement is not necessarily excluded from falling within the definition of hearsay.

What are the grounds for admitting hearsay evidence?

Strict grounds apply.
Hearsay evidence is only permitted if:
- statutory provisions apply
- a common law principle preserved by statute applies
- all parties to the proceedings agree to its admissibility; or
- the court is satisfied that it would be in the interest of justice to admit the evidence

What is statutory provisions apply?
- Grounds for hearsay evidence

A qualifying statement must be admitted as hearsay under a provision of the Criminal Justice Act (CJA)

s116 CJA → evidence may be permitted as hearsay if the witness who made the original statement is unavailable

s117 CJA → if the statement is a business document.

What is an example of another statutory ground for hearsay evidence?

A statement from a witness that is not in dispute may be read out in court without requiring the witness to attend in person.

Unavailable witness
- Statutory provisions grounds for hearsay

When a witness is unavailable they can have their admitted evidence permitted as hearsay. However this provision only applies to 'first-hand' hearsay (as opposed to multiple hearsay).

Evidence may be admissible under s 116 if:
- oral evidence of the person making the statement would have been admissible had they attended in person
-the person who made the statement is identified to the court's satisfaction (ie the court knows who they are) and
- any other reason applies

What are the reasons for unavailability?

1. Witness is dead
2. Witness is unfit due to a bodily or mental condition
3. Witness is outside the UK and is not reasonably practicable to secure their attendance
4. Witness cannot be found despite reasonably practicable steps being taken
5. Witness is in fear of giving evidence

What happens if the reason for unavailability is the witness is dead?

The court will move immediately to consider whether it is in the interest if justice to admit their evidence.

What happens if the reason for unavailability is the witness is unfit due to a bodily or mental condition?

Investigations must be carried out to decide if the condition is satisfied. This condition is satisfied if the witness could be brought to court, but if they were to attend, their bodily or mental condition would render their attendance pointless.

What happens if the reason for unavailability is the witness is outside the UK and is not reasonably practicable to secure their attendance

The witness evidence may be permitted as hearsay. The court will consider any steps taken to secure the attendance of the witness, or the reason for the witness being abroad. The prosecution will need to provide compelling reasons to satisfy this condition and the courts will consider the level of contact before the trial started.

What happens if the reason for unavailability is the witness cannot be found despite reasonably practicable steps being taken?

All reasonable and practicable steps must be taken to locate a lost witness, this does not just mean looking for the witness but also means keeping track of the witness in order to satisfy this condition.

Regular contract should be maintained between the witness and the party calling the witness.

What happens if the reason for unavailability is the witness is in fear of giving evidence?

Hearsay evidence can be admitted where the witness is scared of giving evidence.

Any evidence of fear must relate to the relevant time, and may come from, e.g.:
-being in fear as a result of witness intimidation
- fear of injury of financial loss.

Very strict condition to meet as the courts deploy special measures to mitigate the impact of feat on a witness' ability

Likewise, every effort must have been made to get the witness the court in order to satisfy this condition.

What is first-hand hearsay?

This refers to information that has only passed through one other person, in contrast to multiple hearsay which passes through two or more people.

What are business documents?
- Statutory provisions grounds for hearsay

Statements contained in business documents may be admissable as hearsay evidence if the statement:
- would have been admissible as evidence of a matter stated in oral evidence
- was created or received by a person who at the time was acting in their occupation or citing as a holder of a paid or unpaid office; and
- was supplied by someone who had personal knowledge of the matters stated

Does the business documents statutory provision cover multiple hearsay?

Yes, if evidence is multiple, then each person passing the statement must have done so when acting in their employment or as a holder of an unpaid or paid role.

What are the requirements for a business document to be permitted by hearsay?

- The original witness is unavailable
- It is unreasonable to expect the witness to remember the matters referred to

What is a a common law principle preserved by statute applies?
- Grounds for hearsay evidence

s118 CJA preserves a number of common law exceptions to the rule against hearsay. Relevant exceptions for sqe:
- res gestae
- confession evidence

What is res gestae?

Res gestae is a principle whereby if a statement is made as a result of a close and intimate connection with the event in issue, and it is made contemporaneously (ie at the same time as the event), then it may be permitted as hearsay evidence.

When is res gestae justified?

Res gestae is justified on the basis that the spontaneous reaction to an event would have dominated the thoughts of the victim, making it unlikely the reaction would have been concoted.

James is charged with assaulting Mark, inflicting gbh, contrary to s 20 OAPA. The prosecution alleges that James spontaneously entered Mark's house and punched Mark in the head, causing him to fall to the ground; he then kicked Mark whilst he lay on the floor, Mark suffered a number of broken ribs as a result. James then fled the property. Seconds after James hit Mark , Mark dialled 999 and spoke to a police operator (the call was recorded). Mark told the operator "... It was James, James hit me. I need help" and then the phone line was cut. Mark lost consciousness and woke up later in hospital. He could not, remember who attacked him, and the only evidence the prosecution has to identify James is the 999 call.

Can the recorded 999 call be admitted as hearsay?

Yes, the 999 call can be admitted as hearsay evidence under the res gestae principle, as Mark's statement was made almost instantaneously after the alleged assault occurred. It is therefore unlikely that Mark could have concocted the statement due to the spontaneity of the event.

What is confession evidence?
- Grounds for hearsay evidence

Confession evidence was admissible at common law as an exception to the hearsay evidence rule.

Codified by s 76(1) of PACE 1984, allowing confessions made by an accused person to be presented in court if relevant to the matter in issue.

Section 118(1) preserves this common law rule, allowing admissible confession evidence even if it's considered hearsay.

What is all parties to the proceedings agree to its admissibility?
- Grounds for hearsay evidence

Hearsay evidence is admissible where all parties to the proceedings agree to the evidence being admitted.

What is the court is satisfied that it would be in the interest of justice to admit the evidence?
- Grounds for hearsay evidence

s114 CJA

Hearsay evidence is permitted where it is in the interest of justice to do so (this is a catch-all provision in the cases other provisions do not apply).


The provision should be treated with caution, and not used solely to circumvent any constrains ton other provisions.

What factors do the courts consider when determining if it is the interest of justice to permit hearsay evidence?

The courts must consider:
- how much probative value is in the statement or how valuable it is for assisting the court to understand other matters in the case
- whether any other evidence has been, or can be, given on the matter to which the hearsay evidence relates
- the circumstances in which the statement was made
- how reliable to evidence and maker of the statement appear to be
- whether oral evidence on the matter stated can be given, and if not, why not
- how difficult it would be to challenge the statement
- the extent to which that difficulty would prejudice the party facing it

If evidence is admissible under s 114 CJA, does the court have to accept it?

No, under s 126 CJA the court retains the discretionary exclusionary power to reject hearsay evidence.

When is not necessary to serve notice of a party's intention to rely on hearsay evidence?

Part 20 of the CrimPR deals with the requirement to serve notice of a party's intention to rely on hearsay evidence. These rules only apply where:
-it is in the interests of justice for the hearsay evidence to be admissible;
- the witness is unavailable to attend court;
- the evidence is multiple hearsay; and
- either party wants to rely on a business or other document under s 117 and that document was prepared for use in criminal proceedings. (DOES NOT COVER hearsay contained in a pure business document or for evidence of a confession)

What are the two types of confession evidence?

1. Exculpatory statements
2. Inculpatory statements

What are exculpatory statements?

Statements which are exculpatory will seek to demonstrate a suspect's innocence of committing a particular offence. Such statements may be entirely or partly exculpatory, may relate to other co-defendants and may not necessarily be conclusive.

What are inculpatory statements?

Where a suspect makes a statement which demonstrates their guilt, this is considered inculpatory. These statements may be entirely or partly inculpatory, and may inculpate (or implicate) a co-defendant.

What is a confession?

A confession is an inculpatory statement which adversely affects the person who makes it, either wholly or partly. A confession can be admitted in evidence with damaging consequences, which is why there are additional criteria which need to be satisfied before an inculpatory statement can be considered a confession.

What is the definition of a confession?

'confession', includes any statement which is:
-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.

What legislation governs confession evidence?

ss 76 and 78 PACE.

Wholly or partly adverse to the maker
- Confession definition

A statement constituting a confession may be wholly or adverse (e.g. admits the suspect's guilt in respect of all elements of the offence) or be partly adverse, which may arise from a mixed statement

What is a mixed statement?

A mixed statement is where there are elements of the statement which seem to both exculpate and inculpate the maker. For example: "I hit them, but only because I felt they were going to hit me". It follows that inculpatory elements of the mixed statement may constitute a confession. Generally speaking, mixed statements are admissible as evidence providing that the requirements of s 76 PACE are met.

Made to a person in authority or not and
- Confession definition

A confession does not need to only be made to a person with authority. Typically confessions will be made to police officers, who are person in authority and these statements are widely challenged. However, under s82 PACE, a confession can be made to someone else e.g. a friend.

Made in words or otherwise.
- Confession definition

A confession may be made by a suspect in an interview, which would have been recorded. A statement constituting may, in additional to oral or written admissions, be made through conduct (e.g. nodding the head, a thumbs up or sign language).

James has been arrested on suspicion of theft of a watch contrary to s1 Theft Act. At the interview, and when being questioned, James gave a no-comment interview when asked about the particulars of the offence. Released pending charge, James returned home and asked his best friend, Mark, to come over. When Mark arrived, he asked James about the alleged theft. James told Mark that he did take the watch, but only because it was his originally.

Does James' statement to Mark constitute a confession?

This statement which James made to Mark is likely to constitute a confession. It was a mixed statement which was partly inculpatory (admitting that he took the watch) thus proving some of the elements of the offence, but partly exculpatory (because of the claims that the watch belonged to him and not someone else therefore the theft elements of 'property belonging to another' and 'dishonesty' wouldn't apply). The statement was not made to a person in authority, but to Mark and was made verbally.

With this in mind, James' statement to Mark will likely satisfy s82(1) PACE and be considered a confession.

What is admissibility?

Once prosecution has identified a statement which constitutes a confession, the statement has to be admitted into evidence.

What is general admissibility?

s76(1) PACE permits a confession made by a defendant providing that it is relevant to a matter in issue, and is not excluded by any statutory provision (i.e. cannot be challenged).

The prosecution only have to provide that the confession is admissible if the defence represents that it is admissible under s76(2), or the court, on its own motion, requires proof of admissibility.

What is a defendant admitting a confession of a co-defendant?

Often, a D may want to speak and adduce confession of their co-D. In these circumstances, the confession does not implicate themselves.
s76A → provides that a defendant may adduce a confession of a co-D only if it was not obtained by the excluded methods set out in s76(2)(a) and (b).

If a defendant is seeking to introduce a confession of a co-D and the admissibility challenged, the party seeking to introduce must satisfy the court on the balance of probabilities that the confession is admissible.

Are confessions hearsay evidence?

NO, s76 PACE provides a separate framework to allow confessions to be adduced as evidence.

What is challenging admissibility?

If a party wishes to challenge the admissibility of a confession, they may represent that it should be excluded due to it being obtained:
- by oppression
- unreliably; or
- if the confession is admitted, it would have an adverse effect on the fairness of proceedings

What is the purpose of a voire dire in a criminal proceeding involving a challenged confession? - REPHRASE QUESTION

Once admissibility is challenged, a voire dire will take place to determine whether the confession will be introduced to the arbiter of fact as evidence.

What is a voir dire?

A voir dire is a hearing which takes place before the magistrates, or judge (an in the latter, in the absence of a jury), to determine whether a piece of evidence, usually confessions, is to be admitted. The prosecution and defence may call witnesses, who are subject to cross0examination, and the judge will decide whether the evidence will be admitted.

Confession obtained by oppression s76(2)(a) PACE
-Challenging admissibility

If it appears to the court that the confession being challenged, was or may have been obtained by oppression then the court shall not allow it to be admitted. This occurs even if the court believes the confession is true or genuine.

What is oppression?

Oppression includes:
- being tortured,
- being treated in an inhumane or degrading way; or
- the use of threat of violence

If a confession is obtained as a result of oppression, it MUST be excluded.

Unreliable confession s76(2)(b) PACE
-Challenging admissibility

A confession which was obtained as a consequence of anything said or done which, in the circumstances, would render it unreliable shall be excluded.

With this challenge, the courts are asking whether any confession obtained in these circumstances would be reliable, not just the confession in question