Evidence in Criminal Cases: Unfairly Obtained Confession Evidence

Vocabulary practice flashcards covering Scots criminal evidence law on unfairly obtained confession evidence, the three stages of investigation, requirements of the common law caution, and key case authorities.

Unfairly obtained confession

A confession obtained by improper or unfair means; under the general rule, it is inadmissible as evidence, meaning the court cannot consider it.

Test of fairness

The leading overriding legal standard governing the admissibility of confessions made by an accused person, highlighted in Lord Advocate’s Reference (No 1 of 1983) 1984 JC 52 and HM Advocate v Mair 1982 SLT 471.

Redpath v Webster 2012 SCCR 171

A case demonstrating that determining whether an utterance constitutes an incriminating statement or confession is not always straightforward (e.g., 'she\'ll never press anything anyway').

Spontaneous and voluntary statement

The standard articulated in HM Advocate v Mair 1982 SLT 471 requiring that an accused person's statement to police be given freely and not in response to pressure or inducement to be available as evidence of guilt.

Factors influencing fairness of questioning

Six key considerations affecting the fairness of interrogation: caution, access to lawyer, threats or inducements, entrapment, physical state/age, and mental state.

Chalmers v HM Advocate 1954 JC 66

The landmark Scottish case establishing the three distinct stages of a criminal investigation regarding the questioning of suspects and accused persons.

Stage 1 of an investigation

The stage of an investigation occurring before suspicion falls on an individual, during which any question can be asked by investigators.

Stage 2 of an investigation

The point at which suspicion crystallises on a particular individual, activating the strict common law rules of fairness.

Stage 3 of an investigation

The period following the formal charging of an individual, during which all questioning by the police is prohibited.

Prohibited questioning at Stage 2

Practices forbidden during suspect questioning, including interrogation, cross-examination, leading or repetitive questioning, and bullying or pressure designed to break the will of the suspect.

Codona v HM Advocate 1996 SCCR 300

A case where a 14-year-old accused was subjected to 3.5 hours of repetitive questioning intended to extract admissions; held that her will had been broken, rendering the confession inadmissible.

HM Advocate v Hawkins [2017] HCJ 79

A case where police asked approximately 213 questions to an accused who answered 'no comment' while repeatedly urging him to reconsider his solicitor's advice; held to constitute undue pressure and unfair questioning.

Mitchell v HM Advocate 2008 SCCR 469 (Questioning)

A case where police questioning was characterised by the appeal court as 'outrageous', yet the accused's statements remained admissible because his will was not actually broken and no confession was extracted.

Common law caution

A formal warning required once Stage 2 suspicion crystallises before any questions are asked, requiring two elements: the right to remain silent and notice that anything said may be used as evidence at a future trial.

Tonge v HM Advocate 1982 JC 130

The authority holding that the common law caution trumps any other form of caution.

HM Advocate v Von 1979 SLT (Notes) 62

The authority confirming that both essential elements of the common law caution (right to silence and warning of evidentiary use) are strictly required.

Miln v Cullen 1967 JC 21

A case demonstrating that a caution is not always required because 'fairness is not a unilateral consideration', allowing the admission of a driver's response to an un-cautioned inquiry following a collision.

Mitchell v HM Advocate 2008 SCCR 469 (Family Liaison Officer)

A case establishing that a family liaison officer is not required to deliver a caution because she is not acting in an investigatory capacity.

Rowan v Grant 2009 SCCR 496

A case establishing that a prison officer is not required to administer a caution when asking a prisoner if she was involved in an altercation.

HM Advocate v Auld 2016 SLT 636

A case where a prison officer's un-cautioned dialogue with an accused was ruled inadmissible because it was initiated to prompt a response regarding the charge for which the accused was remanded.

GM v HM Advocate 2013 SCCR 176

A case determining that incriminating statements made by an accused to a police surgeon during a medical examination were inadmissible due to the lack of a caution.

Mitchell v PF Kirkcaldy 2017 SLT (Sh Ct) 207

A case establishing that an accused person's reply to a question asked by a custody sergeant without a caution was inadmissible.