W4: Pre-trial hearings and confessions

How does the criminal justice system begin?

It begins with a person being arrested and brought before the magistrates’ court, alternatively, the magistrates’ court issues a written charge and requisition to secure their attendance.

What is the aspiration of the Criminal Procedure Rules?

Parties and court resolve all pre-trial matters before the day of trial where possible. The expectation is that on the day of trial, the parties are ready to start immediately.

What are pre-trial matters?

All those which can be resolved pre-trial, for example, the trial date applying for a witness summons or resolving legal arguments.

They will be considered either:

• at a first hearing

• at a hearing on a date after the first hearing and before the trial date (pre-trial hearing)

• on the day of the trial itself starts

Pre-trial matters in the magistrates’ court

In many, if not all pre-trial matters can be resolved at the first hearings, sometimes a further pre-trial hearing may be required.

Where a trial takes place in the magistrates court, the parties will be expected to deal with case management issues at the first hearing - the parties will need to complete the magistrates court case management form before the first hearing commences.

At the first hearing, the court will give directions for:

• service of documents between the parties

• resolve there and then any matters or law or set out a timetable as to when they will be resolved, either pre-trial or morning of trial

• the court will set a trial date

• if the magistrates court holds a pre-trial hearing, they may decide admissibility of a piece of evidence (this is binding on the magistrates).

You cannot make an application to vary or discharge based on the same arguments and facts. Such an application can only be made if:

• there has been a material change in circumstances; or

• something was not brought to the attention of the court when they made the ruling which could justify variation or discharge.

The types of applications that might be made are largely the same in both courts, but in the magistrates’ the lay justices or district judges hear the application and then rule on it - the magistrates hears the prejudicial evidence, and then have to try ignore it at trial

How is evidence served on the defence?

Where the magistrates court sends the case for trial to the crown court: it must set a date for a plea and trial preparation hearing within 28 days.

• they will complete a ‘sending sheet’ which specifies the offences, this should be sent to the court and the defendant

Evidence must be served within:

• 50 days if the defendant is in custody

• 70 days if they are on bail

of the date on which the defendant has been sent for trial

• Evidence is uploaded to the crown court digital case system i.e. copies of the documents containing evidence on which a charge is based.

• draft indictment must be served by the prosecutor on the crown court officer not more than 20 business days after serving prosecution evidence

What matters are there no more hearings in the magistrates court for?

• indictable only matters

• trial either way where the defendant is sent for trial by the magistrates to the crown court, or the defendant elects the corn court

Pre-trial matters at the crown court

There will be at least one hearing in the crown court, the pre-trial preparation hearing (PTPH) to deal with pre-trial matters. Sometimes further pre-trial hearings are required.

A pre-trial preparation hearing must happen in all cases.

If a defendant wants to enter a guilty plea to an indictable only matter, D is unable to do so at the first hearing because the magistrates court has no jurisdiction to hear it. They can ask for an early guilty plea hearing in the crown court instead of waiting for the pre-trial preparation hearing.

What is the plea and trial preparation hearing?

This is the main and often only pre-trial crown court hearing.

At the first hearing in the magistrates’ court, when the case is sent ‘forthwith’ by s.51 Crime and Disorder Act 1998, the magistrates court will make a series of standard directions for the prosecution to serve its case on the defence and for a defendant to serve a defence statement - the PTPH is scheduled shortly after.

Where a trial is anticipate, the parties are required to fill in a PTPH form in advance - it consist of two parts, the ‘plea’ and the second either ‘sentence’ or ‘trial preparation.

What is the plea stage at the PTPH?

If the defence wants to make an application to dismiss the charges, they must do so before a plea is taken.

At the plea stage, the indictment is put to the defendant and they enter a plea to each indictment = arraignment

• If the defendant pleads guilty to all counts the case moves to sentence

• if the defendant pleads not guilty, the court proceeds to the trial preparation of the hearing

• where a defendant enters at least one guilty and not guilty please, the prosecution will consider how to proceed. i.e. sentence or PTPH

Is the defendant unfit to plead?

If the judge has determined that they are unfit to plead (with medical evidence), then no plea is taken.

The court will have to hold a trial with a jury to determine whether the defendant committed the act and so the trial preparation stage of the hearing will need to take place.

A defendant who has been found unfit to plead and a jury finds that they have committed the act can only be made subject to the following:

• an absolute charge

• supervision order

• a hospital order

What happens at the trial preparation stage?

Standarised directions will apply for dealing with matters such as:

• special measures: such as a live link and screens sought by witnesses

• bad character: directions will apply for any bad character applications and timetables set for the service of bad character applications and responses

• witness summons: if a witness summons is required, details must be given and the application can be made at the PTPH or a timetable given for making the application

• agreed facts and issues: the defence must set out those matters where there is a dispute with the prosecution case so that the issues for trial are clear

• defence statement: the defence must serve a defence statement at stage 2 which sets out the defence

• disclosure: if there are any issues relating to advance disclosure of unused material, this can be dealt with or the standard directions will deal

• defendant’s interview: the prosecution and defence to agree an edited interview record for use at trial

• hearsay: directions will apply on the service of applications to rely on hearsay evidence

• admissibility and legal issues: all issues relating to the admissibility of evidence and other legal issues should be notified. Directions will be given on when these applications will be made

At the end of this hearing, the parties should know the trial date, the timetable for any further prep work, whether the case needs to be listed in court again before trial.

Where a party fails to comply with any directions, they may be required to come to the court and explain why.

The expectation is that there will be no further hearings = either because there are no further issues or they have deal with it on the day the trial is listed.

What is used material?

The material the prosecution will rely on at trial to prove its case. Used material consists of the case papers and other material that forms part of the evidence in the case.

This includes:

• statements from the prosecution witnesses

• the defendant’s record of taped interview

• other documentary exhibits such as plans and diagrams that are relevant to proving the case

It is from these materials that defendants will know what the cases against them are.

What is unused material?

This is the material not being relied upon by the prosecution. This includes:

• witness statements that the prosecution is not relying upon

• records of previous convictions of prosecution witnesses

• disciplinary finings against police offers.

Why is unused material important?

Often a case will be based on a number of witnesses, whose evidence, if belied is sufficient to convict the defendant of a criminal charge.

• If the prosecution, having reviewed all the material available, considers that there is a realistic prospect of conviction and that it is in the public interest to prosecute the case, it would clearly be wrong to only reveal to the defendant the material that supports its case and not the material that does not.

• Fairness demands that material in the hands of the prosecution that might help a defendant is served on that defendant.

• The defendant may choose to present that material in defence at trial.

What is full and proper disclosure?

The case of R v H and C: 'Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence. Bitter experience has shown that miscarriages of justice may occur where such material is withheld from disclosure. The golden rule is that full disclosure of such material should be made.'

Full and proper disclosure is at the heart of a fair system of criminal justice. It is a vital part of the preparation for trial and for this reason rules have developed as to both the duty to disclose unused material and the duty to retain material during a criminal investigation

What are the main disclosure provisions?

• The Criminal Procedure and Investigations Act (CPIA) 1996, Part 1 (ss.1 to 21)

• The Code of Practice on Disclosure, issued under s.23 CPIA (the Disclosure Code of Practice)

• Criminal Procedure Rules (CrimPR) Part 15

• The Attorney General's Guidelines on Disclosure – for Investigators, Prosecutors and Defence Practitioners (the A-G's Guidelines)

• The Judicial Protocol on the Disclosure of Unused Material in Criminal Cases (the Judicial Disclosure Protocol)

 The disclosure provisions in this element relate to offences in relation to which criminal investigations commenced on or after 1 April 1997.

What are the four stages of disclosure?

1. the investigation stage- the duty to record and retain material during the investigation;

2. the initial duty of disclosure on the prosecution;

3. defence disclosure; and

4. the continuing duty on the prosecution to keep disclosure under review.

What does the investigation stage (stage 1) of disclosure entail?

The duty to retain and record relevant material: Under the Disclosure Code of Practice, during a criminal investigation all material (including information) which may be relevant to the investigation must be recorded in a durable or retrievable form and retained.

Every investigation will have the following features:

• an officer in charge of the investigation: who is responsible for directing the investigation and ensuring that proper procedures are in place for recording information and retaining records of information and other material.

• an investigator: namely any police officer conducting the investigation (must follow all reasonable lines of enquiry must be ‘fair and objective’; and

• a disclosure officer: who is responsible for examining the material retained and revealing material to the prosecutor and to the defence at the prosecutor’s request (must inspect, view, listen to or search all relevant material that has been retained by the investigator and must provide a personal declaration that this has been done).

All material which may be relevant to a criminal investigation must be retained. This includes, in particular:

• crime reports

• records from tapes or telephone messages (such as 999 calls) containing the description of an alleged offender

• witness statements (and drafts if they differ from the final version)

• exhibits

• interview records

• experts' reports and communications between the police and experts for the purposes of criminal proceedings

• records of first descriptions of suspects and any material casting doubt on the reliability of a witness.

• information provided by an accused person which indicates an explanation for the offence charged and any material which casts doubt on the reliability of a confession.

How long does the duty last?

• The duty to retain material lasts at least until a decision is taken whether to institute proceedings against a suspect for a criminal offence.

• Once proceedings are commenced, all material must be retained until the accused is acquitted or convicted, or the prosecutor decides not to continue with the case.

• Where the defendant is convicted, the material must be retained at least until the defendant is released from custody (or discharged from hospital) or, in cases which did not result in a custodial sentence or a hospital order, until six months from the date of conviction.

• In cases where an appeal against conviction is in progress all material that may be relevant must be retained until the appeal is concluded. Where material comes to light after proceedings have concluded which throws doubt upon the safety of the conviction, the prosecutor must consider disclosure of the material.

 

What is the provision of unused material to prosecutor?

The Disclosure Code of Practice sets out a procedure for the Prosecutor to be notified by the disclosure officer of every item of Unused Material.

• In Crown Court cases the disclosure officer prepares a schedule known as an MG6C which individually lists the items of unused material.

• In magistrates' court cases where a Not Guilty plea is anticipated the unused material is listed on a streamlined disclosure certificate.

Sensitive materials (those which may give rise to prejudice to an important public interest):

• this will be listed in a separate schedule or may form part of a public interest immunity application

The disclosure offer must certify that to their best knowledge they complied with duties under the disclosure code of practice.

What is the prosecution’s duty of disclosure (stage 2)?

The initial duty of disclosure is contained in the Criminal Procedure and Investigations Act 1996 s.3:

s.3(1) the prosecutor must:

(a)   disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, or

(b)   give to the accused a written statement that there is no material of a description mentioned in paragraph (a).’

The duty of disclosure relates to ‘prosecution material’ - this is defined in s.3(2) as material: '(a) which is in the prosecutor's possession, and came into his possession in connection with the case for the prosecution against the accused, or

 (b) which, in pursuance of [the Disclosure Code of Practice], he has inspected in connection with the case for the prosecution against the accused.’

The test in s.3 is objective = where there is prosecution material which might help the defence then it should be disclosed.

What further detail do the A-G guidelines add to the disclosure test?

When deciding whether or not material should be disclosed under s.3 CPIA, prosecutors should consider:

(a) the use that might be made of the material in cross-examination;

(b) its capacity to support submissions that could lead to:

(i) the exclusion of evidence;

(ii) a stay of proceedings as an abuse of process, where the material is required to allow a proper application to be made;

(iii) a court or tribunal finding that any public authority had acted incompatibly with the accused's rights under the ECHR.

(c) its capacity to suggest an explanation or partial explanation of the accused's actions;

(d) the capacity of the material to have a bearing on scientific or medical evidence in the case (including relating to the defendant's mental or physical health, intellectual capacity, or to any ill treatment which the accused may have suffered in custody).

The A-G guidelines also state that it should be borne in mind that while items of material viewed in isolation may not be reasonably capable of undermining the prosecution, several items together can have an effect.

If the material is supportive of the prosecution case or is neutral in its effect does not need to be disclosed as unused material because it does not satisfy the disclosure test.

What does the case of R illustrate?

1. The prosecution are in the driving seat at the initial disclosure stage - the prosecution must adopt a considered and appropriately resourced approach to giving initial disclosure and must explain what it was doing and what it would not be doing at this stage, ideally in the form of a "Disclosure Management Document";

2. The prosecution must encourage dialogue with the defence and engage promptly with them – the defence had then to engage with the prosecution and assist the court in fulfilling its duty of furthering the overriding objective;

3. The law is prescriptive of the result, not the method of disclosure – at the initial disclosure stage the prosecution should formulate a disclosure strategy, then canvass that strategy with both the court and the defence and should use technology to make an appropriate search or conduct an appropriate sampling exercise of the material seized;

4. The disclosure process should be subject to robust case management by the judge – the court was entitled and obliged to give orders and directions to address disclosure failings with which it was confronted;

5. Flexibility is critical – disclosure was not a "box-ticking" exercise and the constant aim was to make progress.

What are the time limits for initial disclosure?

The prosecution will serve initial details of the prosecution case (used material) no later than the beginning of the day of the first hearing in accordance with CrimPR Part 8.

The details must include sufficient information to allow the defendant and the court at this first hearing to take an informed view:

(1) on plea;

(2) on venue for trial (for either-way offences);

(3) for the purposes of case management;

(4) for the purposes of sentencing (including committal for sentence for either-way offences).

When does the statutory duty under the CPIA (initial duty of disclosure) arise for unused materials?

In the magistrates' court only when a defendant pleads not guilty and the case is adjourned for summary trial: if there is any further prosecution evidence still to be served, the court will give a date by which this must be done, if the prosecution has not complied with its initial disclosure of unused material at this stage, a date will be given for this to be completed.

In any event, prosecutors should serve initial disclosure in sufficient time to ensure that the trial date is effective.

In the Crown Court when a defendant is sent for trial or where a Voluntary Bill of Indictment has been preferred against a defendant (s.1 CPIA).

If the case is sent to the Crown Court, a plea and trial preparation hearing will take place usually 28 days after sending - the prosecution should serve sufficient evidence in advance of or at the PTPH to enable the court to case manage effectively without the need for a further case management hearing (unless the case involves murder or children) and more prosecution evidence still needs to be served.

The prosecution is under a continuing duty to review the disclosure throughout the criminal proceedings. Following initial disclosure by the prosecution, there is a duty on the defence (mandatory in the Crown Court and optional in the magistrates' court) to provide a defence statement which sets out the accused's defence to the allegation. This defence statement will allow the prosecution to review disclosure in light of what it is told about the nature of the defence.

Even if the duty has not arisen, the prosecutor should bear in mind the need for advance disclosure in the interest of justice - common law duty of disclosure.

What does CPIA section 12 state about the statutory time limits for disclosure?

The CPIA s.12 provides for statutory time limits for prosecution initial disclosure to be set by the regulation but none has yet been made.

The default position under CPIA s.13 is that the prosecutor must act ‘as soon as is reasonably practicable’ once the initial duty of disclosure has arisen.

What duty is imposed by s.5 of the Criminal Procedure and Investigations Act 1996?

In the crown court, the CPIA imposes a duty on the defendant to serve a defence statement on the crown court and prosecution.

A defence statement is a written statement which sets out the nature of the accused’s defence - no duty to serve material which might be helpful to the prosecution, the defence statement is about setting out with reasonable clarity what the defence case is.

What is contained in the defence statement?

Section 6a CPIA 1996 sets out that a defence statement must contain:

(1) For the purposes of this Part a defence statement is a written statement

(a) setting out the nature of the accused's defence, including any particular defences on which he intends to rely,

(b) indicating the matters of fact on which he takes issue with the prosecution,

(c) setting out, in the case of each such matter, why he takes issue with the prosecution, and

(d) setting out particulars of the matters of fact on which he intends to rely for the purposes of his defence, and

(e) indicating any point of law (including any point as to the admissibility of evidence or an abuse of process) which he wishes to take, and any authority on which he intends to rely for that purpose.

(2) A defence statement that discloses an alibi must give particulars of it, including:

(a) the name, address and date of birth of any witness the accused believes is able to give evidence in support of the alibi, or as many of those details as are known to the accused when the statement is given;

(b) any information in the accused's possession which might be of material assistance in identifying or finding any such witness in whose case any of the details mentioned in paragraph (a) are not known to the accused when the statement is given.'

What are the time limits for a defence statement?

Crown Court

 A defence statement is compulsory only in the Crown Court and must be served on the prosecution and the court (CrimPR r.15.4(2)) within 28 days of the date when the prosecution complies with its duty of initial disclosure (or purports to do so).

 This time limit can be extended but only if the application to extend is made within the time limit and only if the court is satisfied that it would not be reasonable to require the defendant to give a defence statement within 28 days.

Magistrates’ court

In the magistrates' court a defence statement is not compulsory, but if a defendant chooses to serve a defence statement in such a case standard directions in the magistrates' court provide that the defendant must do so within 10 business days of the prosecution complying (or purporting to comply) with the initial duty of disclosure. It is worth noting here that although there is no obligation to serve a defence statement in the magistrates' court, failure to do so will mean that the defence will be unable to make an application for specific disclosure.

what does the Judicial Disclosure paragraph 17 provide?

'Service of the defence statement is a most important stage in the disclosure process, and timely service is necessary to facilitate proper consideration of the disclosure issues well in advance of the trial date. Judges expect a defence statement to contain a clear and detailed exposition of the issues of fact and law. Defence statements that merely rehearse the suggestion that the defendant is innocent do not comply with the requirements of the CPIA.'

What should a defence statement in a simple case contain, in accordance with s.6 CPIA?

(1) the nature of the accused's defence (alibi);

(2) those matters of fact on which D takes issue with the prosecution (that D attacked the complainant Stephen Holmes/correctness of the identification);

(3) why D takes issue (because D was not present);

(4) any points of law D wishes to take including authority in support (breach of Code D on Identification/s.78 PACE);

(5) particulars of alibi witness (D’s mother's name, address and date of birth).

What are the rules surrounding witnesses in the Crown and magistrates court?

In both the Crown Court and the magistrates' court, the defendant must disclose to the court and the prosecutor a notice indicating:

• if D intends to call any witnesses at trial (other than the defendant being a witness); and

• if so, identifying the witness by name, address and date of birth or any information to locate and identify the witness.

Alibi witnesses should be included in the defence statement and do not need to be repeated in the Notice of Intention to Call Defence Witnesses.

 

The Notice of Intention to Call Defence Witnesses must be given within 10 business days (magistrates' court) and 28 days (Crown Court) of the prosecution complying or purporting to comply with initial disclosure.

 

The notice may be amended to add or remove witnesses.

What failures can be made by the defence in relation to the defence statement?

(a) fails to serve a defence statement

(b) fails to do so within the required time limits

(c) serves a defence statement which is deficient in its content (such as not adequately setting out the defence relied on at trial or not including an alibi witness called at trial)

(d) relies on a defence at trial which is different to that contained in the defence statement

(e) fails to give notice of defence witnesses.

What are the consequences of defence disclosure failure?

Under s.11 CPIA: the jury may draw such adverse inferences as appear proper against the defendant for such a failure although a defendant cannot be convicted solely or mainly on the basis of such an adverse inference. leave of the court, other than where it relates to a point of law where leave is required.

S.6E(2) CPIA: provides that a judge can warn the defendant at the PTPH or other pre-trial hearing that failure to comply with the relevant provisions may lead to comment being made or adverse inferences being drawn.

A-G's Guidelines:  state that 'Prosecutors should challenge the lack of, or inadequate, defence statements in writing, copying the document to the court and the defence and seeking directions from the court to require the provision of an adequate statement from the defence.’ (para 33).

Section 11 CPIA contains the only sanctions available to the court for failure by the defence to comply with its duties of disclosure. Accordingly, for example, it is not open to the court to prevent a defendant calling an alibi witness D has failed to include in a defence statement. The appropriate sanction here is comment/adverse inference.

 However, if the choice is made to serve a defence statement in the magistrates' court, an adverse inference could be drawn for the same reasons as in the Crown Court, such as for serving it out of time or for putting forward a different defence at trial to that contained in the defence statement.

In the magistrates' court, no adverse inference can be drawn against a defendant for failing to serve a defence statement because there is no duty to do so under the CPIA.

If a defence statement is not served in the magistrates' court or the Crown Court the defendant will not be able to make an application for specific disclosure under s.8 CPIA.

Moreover, failure to serve a defence statement in either the magistrates' court or the Crown Court will mean that the prosecution will not have the opportunity to review disclosure in light of the issues that would otherwise have been set out within them.

S.8 Specific Disclosure

If the accused has at any time reasonable cause to believe that there is prosecution material which is required by section 7A to be disclosed to him and has not been, he may apply to the court for an order requiring the prosecutor to disclose it to him.

S.7a

Imposes a duty on the prosecution 'to keep under review the question whether at any given time (and, in particular, following the giving of a defence statement) there is prosecution material which (a) might reasonably be considered capable of undermining the case for the prosecution against the accused 

What is a defence witness notice?

It requires the accused in a criminal case to give the prosecutor and the court a notice indicating whether they intend to call any witnesses at trial and giving details of those witnesses.

What duty is the prosecution under in relation to disclosure?

A continuing duty of disclosure & the duty to keep disclosure under review.

Service of the defence statement provides the prosecution with a reasonable outline of what the defence to a particular charge is and should prevent the prosecution being ambushed at trial with a surprise defence.

The defence statement also allows prosecutors, in conjunction with disclosure officers and investigators, to revisit disclosure in light of any particular matters raised in the accused's defence. It is therefore of assistance to the prosecution in informing them of what the defence is and to the defence in ensuring that disclosure is carried out in an informed way.

The A-G's Guidelines para 39 advise that?

'Defence Statements are ... intended to help focus the attention of the prosecutor, court and co-defendants on the relevant issues in order to identify exculpatory unused material.’

S.7A(2) CPIA 1996 provides that?

Provides that there is a duty on prosecutors to keep disclosure under review throughout the case and in particular when a defence statement is served.

The Judicial Disclosure Protocol para 20 states that?

'In order to secure a fair trial, it is vital that the prosecution is mindful of its continuing duty of disclosure. Once the Defence Statement has been received, the Crown must review disclosure in the light of the issues identified in the Defence Statement.'

This continuing duty means the prosecutor must keep under review whether there is any material that should be disclosed, even after it has carried out a review following service of the defence statement and this duty lasts until the defendant is convicted, acquitted or the prosecutor decides not to proceed with the case.

The A-G's Guidelines para 42 provide as follows: 'The prosecution's continuing duty to keep disclosure under review is crucial, and particular attention must be paid to understanding the significance of developments in the case on the unused material and earlier disclosure decisions. Meaningful defence engagement will help the prosecution to keep disclosure under review. The continuing duty of review for prosecutors is less likely to require the disclosure of further material to the defence if the defence have clarified and articulated their case, as required by the CPIA.'

What is an application for specific disclosure?

Under s.8 CPIA the defence can make an application to the court where it has reasonable cause to believe that there is prosecution material which should have been disclosed under s.7A(5) CPIA (namely disclosure following service of the Defence Statement) but which has not been disclosed.

What must do the defendant do to be able to make an application for specific disclosure?

The defendant must have served a defence statement (in the magistrates' court or the Crown Court) and the prosecutor must have either provided further disclosure in light of that Defence Statement or notified the defendant there is no further disclosure to be made (s.7A(5) CPIA).

Note that failure to serve a defence statement (even in the magistrates' court where there is no statutory obligation to do so) will mean that an application for specific disclosure cannot be made.

The Judicial Disclosure Protocol para 26 provides that?

'defence requests for disclosure of particular pieces of unused prosecution material which are not referable to any issue in the case identified in the defence statement should be rejected’

What criteria must be met for a s.8 application for specific disclosure?

The defence statement must set out the issues clearly as a prerequisite to applying under s.8 for specific disclosure.

The procedure is governed by CrimPR r.15.5 – the defendant must serve the application on the court and the prosecution. The application must describe the material the defendant wants to be disclosed and explain why there is reasonable cause to believe:

(a) that the prosecutor has the material; and

(b) that it is material that should be disclosed under the CPIA.

The defendant should ask for a hearing if one is required and explain why it is needed. The prosecution has 10 business days to respond in writing to any such application.

It is worth noting that applications of this nature should be seen as a last resort. Discussion and co-operation between the parties outside court is encouraged in order to ensure that the court is asked to make a ruling only when strictly necessary.

What are the consequences of the defence’s failure to disclose?

• The defence could bring an application to stay the indictment on the ground that to continue the case would be an abuse of process of the court.

• It could result in a conviction being quashed on appeal due to being unsafe.

• It would be likely to result in delay and the imposition of wasted costs for unnecessary hearings or a refusal to extend custody time limits.

• It could also potentially result in the exclusion of evidence in the case due to unfairness.

Prior to making any such formal application the defence should write to the prosecution specifying the material which they seek and make a formal application for specific disclosure. Particularly in large and complex cases, legal representatives are encouraged to cooperate.

What are the rules surrounding third party disclosure?

The Disclosure Code of Practice and the A-G's Guidelines impose a duty on investigators and prosecutors to ‘pursue all reasonable lines of enquiry’.

Sometimes it will become clear during an investigation that material which is relevant to the prosecution case may be held by third parties such as local authorities, health and education authorities, or financial institutions.

There is no duty under the CPIA for third parties, however, where the material is considered to be capable of undermining the prosecution, the prosecution should take appropriate steps to obtain it.

In cases where it is believed that the third party holds relevant information, they should be informed of the investigation and a request should be made for the material in question to be retained in case a request for disclosure is made, however, speculative inquiries of third parties are not required.

If material is requested but access is refused, the prosecution in the crown court, can consider seeking a summons under s.2 of the criminal procedure (attendance of witnesses) act 1965 for production of the material. The similar provisions are for the magistrates court under s.97 magistrates court act 1980.

What is public interest immunity?

The prosecution is under a duty to disclose material to the defence (because it satisfies the disclosure test under s.3 CPIA) but the prosecution does not wish to disclose the material, believing that to do so would give rise to a real risk of serious prejudice to an important public interest.

In such circumstances the prosecution cannot simply hold this sensitive material back and keep quiet. The required course of action under the CPIA is to apply to the judge for non-disclosure in the public interest. This is called a Public Interest Immunity (usually abbreviated to 'PII') Application.

The court will consider the material and may withhold disclosure of such material to the minimum extent necessary to protect the public interest, whilst always ensuring that the defendant(s) can have a fair trial.

Sensitive material of this nature must be recorded at the investigation stage in the Sensitive Material schedule in which investigators must state:

• why the material is sensitive and to what degree

• the consequences of disclosing the material to the defence (including the involvement of third parties in bringing the material to the attention of the prosecution)

• the relevance of the material to the issues in the case

• the implications for continuing the prosecution if the material is ordered to be disclosed

• whether it is possible to make disclosure without compromising its sensitivity.

What are the facts in issue?

The facts that any party needs to prove in order to prove its case.

Prosecution: the facts in issue are those needed to prove the offences charged e.g. stating the ingredients of the crime and whether they have been met.

The court will try to narrow the issues to see if the defence (if any) can agree on anything.

How is a fact proven (apart from live evidence)

• agreeing a witness statement as true by consent of the parties - CJA 1967, s.9

• agreeing any facts between the parties - CJA 1967, s.10

• a judge or jury to take ‘judicial notice’ of the fact

What is ‘agreeing a witness statement as true by consent of the parties’?

s.9 CJA: the witness’ statement can be agreed as accurate and true in its written form.

The statement is then read out, and carries the same weight as if the witness had attended in person and given evidence from the witness box.

If the evidence is disputed, the witness will be called in and challenged.

What is ‘agreeing any fact between the parties’?

CJA, s.10: the advocates to agree in a case that the fact is so. The fact is reduced to writing and both parties agree to sign the agreement.

For example, if a defendant is found with someone else’s credit card, the prosecution would need to prove that the owner of the card had not given anyone authority to take and use the card. One could either acquire a witness statement from the original owner of the card or, more simply, just agree that the defendant was not the owner of the card and did not have permission to have it. We assume in this scenario that the defendant is challenging guilt on some other basis and is not challenging that the card was someone else’s.

What is ‘judicial notice’?

Where facts are generally and widely known, then formal proof of them is therefore not required.

‘Notice’ goes further, in that a judge is permitted to take judicial notice of a fact ‘on enquiry’, meaning that a judge might not know a fat from the top of their head but could easily find out and the parties can ask the judge to look up the answer.

However, jurors are not allowed to research.

Jurors cannot take notice on personal matters - if they have knowledge of matters that are relevant to the case, they need to make the court aware.

What are the types of evidence?

a) oral evidence given by a witness in court- the most common

b) written form:

a) agreed statements (s 9 CJA 1967);

b) admitted facts (s.10 CJA 1967)

c) 'real' evidence

d) ‘direct’ evidence

e) ‘circumstantial’ evidence

f) a ‘view’.

What is ‘real evidence’

Objects and things which are brought to court for inspection. Some real evidence will be in the form of documents that are exhibited by a witness who can vouch for their origin.

Direct evidence vs circumstantial evidence?

Direct: evidence that a witness gives of having had direct experience of a matter in issue

Circumstantial: facts which are inferred

What is meant by ‘view’?

Occasionally juries can visit a scene of a crime or leave court to view an object which cannot be brought into court.

What must advice be to be admitted?

For evidence to be admissible, it must be relevant. Relevance is established by whether it is ‘logically probative’ of a fact in issue i.e. does it prove or disprove a fact in issue?

R v Usayi: court of appeal, held that the evidence was insufficiently relevant regardless of hearsay arguments, and should not have been admitted.

Is the evidence subject to an exclusionary rule?

There are rules to protect the fairness of trials to prevent evidence which is relevant, but should still not be admitted because of the effect on the fairness of a trial.

 

For example, if the police acquired relevant information by using an illegal phone tap, then the courts would consider an exclusionary rule to prevent the use of the evidence in court.

What is the weight of the evidence?

All evidence varies in terms of strength, reliability and value.

Attaching the right degree of weight to a piece of evidence is a matter for the jury. Advocates will typically try to persuade the jury as to what weight they should attach to the evidence.

If the evidence is problematic, the judge may intervene to rule the evidence as inadmissible, on the basis that, even though it is relevant no one could reasonably put any reliance on the evidence.

Tribunals of fact and law

We use the word ‘tribunals’ when asking these questions:

 

1) Who in this case determines what the facts are; and

2) Who in this case determines the law?

The answer to question one is that the 'tribunal of fact' is responsible for determining the facts. In the Magistrates' Court, the tribunal of fact is the bench of magistrates (or District Judge). In the Crown Court, the tribunal of fact is the jury.

 

The second question is answered in similar terms, namely that the tribunal of law is responsible for the law, and in the Magistrates' Court, the tribunal of law comprises the magistrates (or District Judge) and in the Crown Court, the tribunal of law is the judge.

Issues of admissibility of evidence are matters of law for the tribunal of law to determine.

A Judge cannot “strike out” a criminal defence, the ultimate question of whether the defence was made out would remain with the tribunal of fact, the jury.

Tribunals in the Crown and magistrates court

The tribunals are different in the Crown Court (ie judge and jury take one role each) but in the magistrates' court, it is the same person (or people) playing both roles. For example, a defendant might confess in a criminal case, but then challenge the admissibility of the confession, perhaps saying that officers used force to extract the confession.

 

In the Crown Court, the judge alone will hear the application to exclude as inadmissible the evidence of the confession. If the application is successful, the jury (as tribunal of fact) will never be told that there had been a confession. In the magistrates' court, it is the same bench that hears the application to exclude the confession that will ultimately consider guilt.

 

Having ruled the confession as inadmissible, the magistrates must then 'put out of their mind' the confession and not let their knowledge of the confession influence their consideration of the facts of the case. It is like the dramas we all see from the U.S. where attorneys use foul play or some trick in the courtroom and the judge says 'strike that from the record' and the jurors have to pretend that they never heard the improperly adduced evidence.

 

The fact that in the magistrates' court, the tribunals and fact and law are the same is regularly a strong reason for defendants to prefer trial in the Crown Court.

What is an application for dismissal?

A pre-trial application to have the charges against a defendant dismissed.

This can be made:

• only after the defendant is sent by the magistrates court for trial at the crown court

• only after the defendant has been served with the evidence relating to the offence; and

• only before the defendant is arraigned (offence put to D and they plead not guilty/guilty).

The power to make the application is contained in schedule 3 of the Crime and Disorder Act 1998 and the procedure is set out in CrimPR r.9.16.

The application is made to the crown court judge and if the defendant wishes to make an oral application, D must give written notice of their intention.

What is the test for dismissing the charge set out in Schedule 3 p 2(2) CDA?

'The judge shall dismiss a charge (and accordingly quash any count relating to it in any indictment ...) ... if it appears to him that the evidence against the applicant would not be sufficient for him to be properly convicted.’

This amounts to the same test where the defence make a submission of no case to answer, as set out in the case of R v Gailbraith, namely that the judge should stop the case:

(i) where there is no evidence that the crime has been committed by the defendant; or

(ii) where the prosecution evidence, taken at its highest, is such that a properly directed jury could not properly convict on it

R v Crown Court at Kingston: the court held that a judge considering an application to dismiss must take into account the whole of the evidence and not view matters in isolation from their context - if the prosecution seeks inferences to be drawn from the evidence, the judge needs to consider whether the inferences could properly be drawn by the jury.

What is a submission of no case to answer?

During trial and after the prosecution has presented its evidence, the defence are entitled to submit to the judge that there is no case to answer on any one or all of the charges faced by the defendant (both crown court and magistrates court).

R v Gailbraith, sets out the principles:

'(1) if there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case;

 

(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence.

 

(a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.

 

(b) Where, however, the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury ...'

When is submission of a no case to answer made?

it is made at the close of the prosecution case because it is only at this stage that the entirety of the prosecution case against a defendant can be considered. In the crown court, this will take place in the absence of the jury. If successful the jury will be made aware, if not, they will not.

What are the take-aways from the case of Gailbraith?

Where there is no evidence to support the charge there will be no difficulty in stopping the case. This would be an application under the first limb of Galbraith, such as where a witness accepts that the person who committed the offence is not the person standing in the dock. In these circumstances, assuming there is no other evidence available to the prosecution, there is no evidence that the offence has been committed by the defendant and the case will be stopped.

The difficulty arises, as set out in the Galbraith test itself, when there is some evidence, albeit the integrity of that evidence is open to question. This is where the judge/magistrates will have to consider whether that evidence, taken at its highest, is such that a conviction can properly be founded upon it. This is an application under the second limb of Galbraith, such as where a witness has given inherently weak, vague or contradictory evidence, or where the credibility of the witness is open to question, such that the evidence presented by the prosecution could not properly found a conviction.

In the magistrates' court and in the Crown Court at the conclusion of the prosecution case, on the defendant's application or on its own initiative, the court (i) may acquit on the ground that the prosecution evidence is insufficient for any reasonable court properly to convict, but (ii) must not do so unless the prosecutor has had an opportunity to make representations (ie the prosecution must be given the right to reply to such an application). The test here is taken from Galbraith and there is no material difference between the two. There is no obligation in the magistrates' court or the Crown Court for reasons to be given when rejecting a submission of no case to answer.

issues of credibility are matters for the tribunal of fact to weigh up in reaching a verdict - this will not normally lead to a case being stopped or a submission of no case to answer.

What is a s.78 PACE application?

S.78 PACE is concerned with the fundamental concept of fairness and is the principal and most important means by which the defence can seek to have prosecution evidence excluded.

S.78 only applies to evidence on which the prosecution proposes to rely so it cannot be used by the prosecution or a co-defendant to exclude evidence that a defendant seeks to admit

What is an abuse of power application?

When there is an issue of unfairness or impropriety so fundamental that for the trial to continue this would be an abuse of power.

R v Crawley: "there are two categories of case in which the court has power to stay proceedings for abuse of process. These are, first, where the court concludes that the accused can no longer receive a fair hearing; and, second, where it would otherwise be unfair to try the accused or, put another way, where a stay is necessary to protect the integrity of the criminal justice system. The first limb focuses on the trial process and where the court concludes that the accused would not receive a fair hearing it will stay the proceedings; no balancing exercise is required. The second limb concerns the integrity of the criminal justice system and applies where the court considers that the accused should not be standing trial at all, irrespective of the potential fairness of the trial itself.“

Examples of where a defence might apply to have the proceedings stayed due to abuse of power of the process of the court

• where a defendant has been tricked or coerced into committing an offence the defendant would not otherwise have committed

• where a defendant is prosecuted despite an unequivocal promise by the prosecution that the defendant will not be

• where the police have acted in such a way as to undermine public confidence in the criminal justice system and bring it into disrepute, such as by deliberately destroying evidence that would have assisted the defence

• where the prosecution has manipulated or misused the process of the court so as to deprive a defendant of a protection afforded by law.

Delay can amount to an abuse of process of the court. If the prosecution has deliberately delayed proceedings in order to gain a tactical advantage this is likely to amount to an abuse of process.

Even if the defence cannot assert that the prosecution has deliberately delayed proceedings, inordinate or unconscionable delay due to the inefficiency of the prosecution in bringing a case coupled with prejudice caused to the defence as a result may be sufficient for an abuse of process application to succeed - R v Gateshead Justice.

What is the common law discretion to exclude evidence?

PACE Section 82(3)

 ‘82(3) Nothing in this Part of this Act shall prejudice any power of a court to exclude evidence (whether by preventing questions from being put or otherwise) at its discretion.’

Section 82(3) PACE preserves the common law discretion of the courts to exclude evidence where its prejudicial effect outweighs its probative value; this includes the discretion to exclude evidence if it is necessary in order to secure a fair trial for the accused.

 Like s.78, this discretion to exclude evidence applies only to prosecution evidence. As such, at common law, it is not open to the prosecution to apply to exclude defence evidence, or for one defendant to apply to exclude evidence which a co-defendant seeks to admit. If significant unfairness would result to a defendant from a co-defendant's evidence in such circumstances the defendant could apply to be tried separately from the co-defendant.

In practice, the common law discretion to exclude evidence has little relevance.

This is due to the wide-ranging statutory powers to exclude evidence, particularly under s.78 and s.76 PACE.

Applications under s.78

(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given 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.

(2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.'

Section 78 PACE is concerned with the fundamental concept of fairness and is the principal and most important means by which the defence can seek to have prosecution evidence excluded.

 Section 78 only applies to 'evidence on which the prosecution proposes to rely' so it cannot be used by the prosecution or a co-defendant to exclude evidence that a defendant seeks to admit.

R v Quinn: '... The function of the judge is therefore to protect the fairness of the proceedings, and normally proceedings are fair if a jury hears all relevant evidence which either side wishes to place before it, but proceedings may become unfair if, for example, one side is allowed to adduce relevant evidence which, for one reason or another, the other side cannot properly challenge or meet.'

This can also include situations where evidence was obtained in breach of the ECHR.Section 78 is also commonly utilised alongside s.76 PACE to seek to exclude evidence of confessions which the prosecution seek to rely upon

What is the test for the court when considering whether they should admit evidence?

whether “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.”

The court is not concerned with marking its disapproval of police conduct by excluding evidence, or otherwise seeking to punish the prosecution for the way in which evidence has been obtained, it is simply concerned with whether fairness dictates that the evidence should be excluded in the circumstances.

However, where there has been bad faith on the part of the police when acting in breach of PACE or the Codes of Practice that is a factor which is likely to lead to exclusion of the evidence.

PACE Codes of Practice breaches

Since s.78 refers to having regard to all the circumstances, including the circumstances in which the evidence was obtained the defence will, where applicable, refer to breaches of the Codes of Practice under PACE when making a s.78 application.

 

The Codes of Practice are issued under s.66 PACE and set out the procedures that the police (or other investigators) must follow in the exercise of their powers under PACE. As such, it will often be the case that the defence will rely on a breach of the code as the basis for seeking to exclude the evidence under s.78.

What is s.67 PACE?

Under s.67(11) PACE the codes are admissible in evidence; this means that where a breach of a code is alleged the defence are entitled to rely in court on the content of the code which sets out those procedures which should have been followed.

 

There are eight Codes of Practice, namely:

 

• Code A (Stop and Search);

• Code B (Entry, Search and Seizure);

• Code C (Detention, Treatment and Questioning of Non-Terrorist Suspects);

• Code D (Identification);

• Code E (Audio Recordings of Interviews);

• Code F (Visual Recording of Interviews with Sound);

• Code G (Arrest); and

• Code H (Detention, Treatment and Questioning of Terrorism Suspects).

What is Code C?

Paragraph 3.1 provides that detained suspects must be informed of:

 

(i)             their right to consult privately with a solicitor and that free independent legal advice is available;

(ii)            their right to have someone informed of their arrest; and

(iii)           their right to consult the Codes of Practice.

Paragraph 10.1 provides that a person whom there are grounds to suspect of an offence must be cautioned before any questions about the offence are put to them, if either the suspect's answers or silence may be used in evidence against them.

 

Paragraph 10.3 requires the caution to be given on arrest.

 

Paragraph 10.5 states that the caution should be in the following terms: 'You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.' Minor deviations are permissible (para 10.7).

 Paragraph 11.1A defines an interview as 'the questioning of a suspect regarding their involvement or suspected involvement in a criminal offence'.

Paragraph 11.1 requires an interview to take place at a police station, except where the

delay would:

(i) lead to interference or harm to evidence connected with an offence

(ii) interference with or physical harm to other people

(iii) serious loss or damage to property

(iv) lead to alerting other suspects who have not yet been arrested; or

(i) hinder the recovery of property obtained as a result of the offence.

Paragraph 11.15 requires juveniles (under 18s) or those with mental disorders or who are mentally vulnerable only to be interviewed in the presence of an appropriate adult.

Examples of when a s.78 application would be made to exclude evidence obtained in that way

• the "fundamental right" of access to legal advice has been improperly denied;

• where waiver of the right of access to legal advice was not voluntary, informed or unequivocal;

• where there has been a failure to caution a suspect before questioning;

• where an appropriate adult has not been provided for a youth, mentally disordered or mentally vulnerable suspect;

• where identification procedures have not been followed.

In the elements on confessions you will see more examples of how s.78 is used as a further or alternative argument to exclude confession evidence.

What are the rules on significant and substantial breaches of the codes

This can result in exclusion under s.78 if the breaches of the code are significant.

It is important to consider what when making an application under s.78 it not so much what the breach is but what the effect of the breach is - does it have an adverse effect on the fairness of the proceedings that the court ought not to admit it?

When can a s.78 application be made?

• before the trial;

• at the commencement of the trial; or

• just prior to the prosecution seeking to admit the evidence which the defence wish to be excluded.

The judge usually wants this to take place at a pre-trial hearing or at the commencement of the trial. If the argument is not heard before the case commences, the prosecution should avoid making any reference to the disputed evidence in the opening speech. The key point is that a s.78 application should be made before the evidence to which objection is taken is adduced.

Directions will be given by the judge in the Crown Court, usually at the Plea and Trial Preparation Hearings (PTPH), as to when a s.78 application will be heard.

Similar directions will be given when dealing with case management at the magistrates' court.

Voir dire

Since a s.78 application is an application by the defence (to exclude prosecution evidence), the defence representative will address the court first followed by the prosecution advocate responding.

In the Crown Court, where there is a dispute on the facts between the defence and the prosecution, the judge will not be able to determine the s.78 application until the factual matter has been resolved. For example, if the defendant is advancing an argument that the police acted in a way that was in breach of the PACE codes but the police officers concerned deny this, then the judge will have to hear evidence and make a decision on the facts before the judge can decide how the law should be applied. The normal burden and standard of proof in criminal cases apply, so in order to find in favour of the prosecution version of the facts the judge will have to be satisfied of that factual position beyond reasonable doubt. If the judge concludes after hearing the evidence that the police acted appropriately, the legal argument will fail. On the other hand, if the judge concludes that the police misbehaved and that there had been a significant and substantial breach of the code resulting in unfairness to the defendant, then the evidence concerned is likely to be excluded.

Hearing evidence in this way on a legal argument is called a trial 'on the voir dire' (commonly referred to simply as a 'voir dire') and is a type of mini-trial or 'trial within a trial'. The evidence called by the prosecution and defence will relate only to the matters in dispute. In a voir dire the witnesses testify on a special form of oath/affirmation 'that I will true answer make to all such questions as the court shall demand of me'.

Being a legal argument, in the Crown Court a voir dire takes place in the absence of the jury. In the magistrates' court, the magistrates (being both the tribunal of fact and law) can rule on a s.78 application when it arises or hear all the evidence (including the disputed evidence relating to the legal argument) before ruling on admissibility. However, the interests of justice may dictate that a ruling on admissibility is made early enough to allow the defendant to know whether that evidence forms part of the case, to deal with it in cross-examination and in D’s evidence and, if appropriate, to make a meaningful submission of no case to answer. This is particularly the case where the disputed evidence is a confession which forms the main evidence against a defendant.As such, disputed confessions should be determined as a preliminary issue. When the application is under both s.76 and s.78 PACE a voir dire should be held as a preliminary issue.

What is a confession?

'Section 82

 In this Part of this Act—

"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.'

What is the definition of a confession under PACE S.82 (1)?

The definition is deliberately wide. The following will fall in the definition:

• unequivocal confessions of guilt (ie wholly inculpatory statements such as ‘I did it’).

• mixed statements (those which are partly inculpatory and partly exculpatory, such as 'I had nothing to do with it but I was glad to see the victim die’). These fall within the definition of a confession because they are partly adverse to the maker.

• depending on the context, a nod, sign or gesture can be sufficient, as a confession does not have to be articulated in words.

What does s.76 PACE say about confessions?

'76 (1) In any 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 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

(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) Nothing in Part VII of this Act shall prejudice the admissibility of a confession made by an accused person.

(8) In this section "oppression" includes torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture).'

 

In what two ways can a confession be challenged under s.76?

(1) under s.76(2)(a)- 'oppression’; or

(2) under s.76(2)(b) - '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'.

This does not come into play automatically, and the defence will need to represent it to the court. However, the prosecution can ask that the prosecution gives proof that the confession was not obtained through one of those ways.

What does limb 1 - exclusion for oppression entail?

Section 76(2)(a) provides that where it is represented to the court that the confession was or may have been obtained by oppression of the person who made it, then the court shall not allow the confession to be given in evidence against him except insofar as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.

'Oppression' is widely defined in s.76(8) to include torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture). This wording reflects that contained in European Convention on Human Rights, Article 3.

Once the defence represent that the confession was obtained by oppression, or the court chooses to act of its own motion under s.76(3), the prosecution must prove beyond reasonable doubt that it was not so obtained.

If the judge is satisfied beyond reasonable doubt that the confession was not obtained by oppression (and is therefore admissible), this does not prevent the defence during the trial seeking to discredit the same evidence by cross-examination and making reference to it in their closing speech, ie that it was obtained by oppression and is therefore unreliable = it would then be for the jury to decide for themselves whether to rely upon the alleged confession or not.

What does limb 2 - exclusion for unreliability entail?

Section 76(2)(b) provides that:

 

• where it is represented to the court that

• the confession was or may have been obtained 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 insofar as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid

The approach to this is set out in R v Barry:

• First, to identify the thing said or done, which requires the trial judge to take into account everything said and done by the police.

• Secondly, to ask whether what was said and done was likely in the circumstances to render unreliable a confession made in consequence. The test is objective taking into account all the circumstances.

• Thirdly, to ask whether the prosecution has proved beyond reasonable doubt that the confession was not obtained in consequence of the thing said and done, which is a question of fact to be approached in a common sense way.

STEP 1: Identifying the thing said or done

These can be positive acts, such as a promise, inducement or trick. Examples are:

 

• a promise to release someone promptly from police custody only if they 'tell all'; or

• a promise of bail from the police station conditional on a full and frank confession; or

• a threat to arrest a suspect's partner or other family members if the suspect does not 'cooperate’.

The thing said or done can also be an omission or failure to act, such as interviewing a young or mentally vulnerable suspect without an appropriate adult.

 The thing said or done must not simply be something from the suspect, but from something external to the person. A suspect who makes an admission because they consider this is likely to get them bail (when the suspect has not been induced into believing this) cannot subsequently rely on s.76(2)(b).

Often when s.76(2)(b) is invoked the defence will be submitting that what was said or done was itself a breach of PACE Code C

There will be situations where the conduct of the police or other investigator amounts to both oppression and to ‘things said or done’.

STEP 2: Ask whether what was said and done was likely in the circumstances to render unreliable a confession made in consequence?

The court will consider whether what was said or done was likely in the circumstances to render unreliable a confession made in consequence - is there a likelihood?

What does ‘unreliable’ mean?

This is an objective test.

Examples of unreliable confessions

• Sleep deprivation

• Failure to caution

• Denial of access to legal advice

STEP 3: Ask whether the prosecution has proved beyond reasonable doubt that the confession was not obtained in consequence of the thing said and done

Has the prosecution has proved beyond reasonable doubt that the confession was not obtained in consequence of the thing said and done?

Defence Counsel will be acting on the instructions from the defendant or from other evidence. Once it is represented by Defence Counsel to the court that the confession 'was or may have been obtained' by anything said or done which was likely in the circumstances to render any confession unreliable, '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.’

Evidence discovered as a result of an excluded confession?

PACE s.76(4)

 

Section 76(4) PACE provides: 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.'

Can facts discovered still be relied upon?

Even where a confession is excluded, this does not prevent facts discovered as a result of it being relied upon in evidence.

However, in these circumstances it would not be open to the prosecution to suggest that the body was discovered by reason of something said by the defendant (eg 'Members of the jury, we cannot tell you what the defendant said, but as a result of what the defendant said the police discovered the body of the deceased.'). To do so would be to circumvent the exclusion of the confession itself.

This rule is contained in s.76(5) PACE:

'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.'

The speech, writing or expression of the accused

This concerns situations where, even though the words of the confession have been excluded, the prosecution wants to use such part of the confession as is necessary to show the accused speaks, writes or expresses himself in a particular way.

What does s.78 state regarding exclusion of evidence?

This can be used as an alternative to s.78. This exerts a broader sweep than s.76.

“Any evidence may be excluded if the court thinks that “the admission of the evidence would have such an adverse effect on the fairness of the proceedings that they ought not to admit it”

The court will consider how serious or significant the breach was.

The court will use discretion to determine whether the probative value of an accused person’s statement is override by its prejudicial value.