Confession Evidence and Admissibility in Criminal Cases

Flashcards covering key statutory provisions under the Criminal Justice (Scotland) Act 2016, case law, and procedural fairness rules governing suspect confessions, entrapment, and legal assistance in Scots criminal law.

Entrapment

The obtaining of evidence in a manner that is calculated, deliberate, and deceptive, as defined by Keane and Davidson.

HMA v Gilgannon 1983 SCCR 10

A case establishing that a confession is inadmissible where the accused person is unable to give a proper account due to a mental disability.

Higgins v HM Advocate 1992 SCCR 542

A case holding that a mental disability in itself is not sufficient to render a confession inadmissible; it must affect the reliability of the confession.

Chalmers v HM Advocate 1954 JC 66

A case demonstrating that in certain circumstances, an accused person's mental stress may be sufficient to render a confession inadmissible.

Section 42 of the CJ(S)A 2016

A statutory provision placing specific duties on police officers dealing with a vulnerable suspect, including providing support to aid understanding and communication.

Section 33(2)(c) of the CJ(S)A 2016

A statutory rule stating that suspects who, owing to a mental disorder, cannot understand sufficiently what is happening or communicate effectively with police cannot waive their right to have a lawyer present during interview.

Sections 32 and 33 of the CJ(S)A 2016 (Child Suspect Protections)

Statutory provisions (as amended by s 15(5) of the Children (Care and Justice) (Scotland) Act 2024) mandating that all detained child suspects under the age of 18 receive compulsory legal advice from a lawyer, cannot waive this right, and cannot be interviewed without a lawyer present.

HM Advocate v Campbell 1964 JC 80

A case establishing that evidence of a confession will usually be inadmissible where a suspect has been trapped into making it.

Hopes and Lavery v HM Advocate 1960 JC 104

A case where a live recording of suspects was held to be admissible, distinguishing it from improper entrapment.

Overhearing (in the Context of Entrapment)

The interception or overhearing of suspect statements that constitutes entrapment only if the overhearing was deliberately set up by authorities.

ECHR Article 8(2) Justification

The legal provision allowing state interference with an individual's Article 8(1) privacy rights during criminal investigations if the interference is lawful and necessary in a democratic society for the prevention of crime.

Black v Annan 1995 SCCR 273

A case ruling that where an accused is threatened with deprivation of liberty if they do not comply, there is no requirement to prove a causative link between the inducement and the resulting confession.

Harley v HM Advocate 1995 SCCR 595

A case holding that an improper threat or inducement does not need to consist of violence or deprivation of liberty, finding a threat of disclosure of adultery to be sufficient.

Cadder v HM Advocate [2010] UKSC 43

A landmark UK Supreme Court decision establishing a detained suspect's right to consult with a lawyer prior to being interviewed by police.

Section 32 of the CJ(S)A 2016

A statutory provision giving a person in custody or attending a police station voluntarily the right to have a solicitor present during interview, prohibiting police from interviewing until the solicitor arrives unless consent is given.

Section 44(1) of the CJ(S)A 2016

A statutory provision conferring the right upon any person held in custody to consult with a solicitor at any time, subject to specific statutory exceptions.

M v HM Advocate 2013 JC 153

A case establishing that failure to comply with statutory rights of access to a lawyer renders a resulting confession inadmissible, though conviction is only quashed on appeal if there was a real possibility of a different verdict without it.

McGowan v B 2012 SC (UKSC) 182

A case determining that any waiver by a suspect of their right to have a lawyer present at a police interview must be voluntary, informed, and unequivocal.

Miller v Smith 2013 SCL 188

A case ruling that for a suspect's waiver of access to a lawyer to be legally valid, the suspect must be explicitly informed of their right to change their mind.

Paul v HM Advocate 2014 SCCR 119

A case holding that a suspect's waiver of legal representation is invalid where the reason for waiving was merely to get the interview over with, rendering the interview evidence inadmissible.

JUSTICE Scotland Report (2018)

A report highlighting that around 70% of suspects waive advice, only around 25% requesting legal assistance receive it in person during interview, and only 9% actually received assistance in February 2017.