Problem Question: Advise the appellants as to any EVIDENTIAL ISSUES which their lawyers could raise on appeal (full question included)

Under s.78 the judge may ought to have exercised his discretion to exclude the confession, if it escaped the ambit of s.76(2)(a), as the admission of the confession may have reflected adversely on the fairness of the proceedings, in that the manner with which the confession was obtained may have been unfair to Jack.  In addition, breaches of PACE Codes of Practice (Codes) can require a s.78 discretion to be used but provided such breaches are ‘significant and substantial’.  The failure to provide adequate food means that the Inspector did not follow the Codes due to his breach of Code C.  Such incompetence may render the Inspector’s breach ‘material’ as Jack may not have made the confession in healthier circumstances and thus rendering the manner in which the confession was obtained unfair to Jack.

The Inspector committed a further breach under s.58 of PACE by denying Jack access to a solicitor.  This can be regarded as something said or done for the purposes of s.76(2)(b) which may render Jack’s confession unreliable in the circumstances in which it was obtained, and thus be excluded.  Furthermore, this restriction also constitutes a breach of PACE Code C sec 6.5chek requiring Jack to be provided with legal access upon request.  Such a breach may also constitute a ‘significant and substantial breach’ for it to be excluded under s.78 as it may reflect adversely on the fairness of the proceedings, and due to its material contribution in that Jack may not have made the confession had a solicitor been present.  But if Jack is an experienced offender then the denial of legal advice may not constitute an exclusion of the confession as it may still have been made with a solicitor present. 

But the Inspector’s decision to withhold legal access may be permitted where his reason for doing so is within the ambit of s.58(8) of PACE and where the prosecution prove that there were reasonable grounds for such a belief, however as it is not stated within the facts it may have been withheld for improper reasons.

Hence, on the facts, Jack’s confession may have been wrongly admitted and be excluded under the aforementioned provisions.  Namely under s.76 as it may have been obtained through oppressive means (§a) or in a circumstance that may render the confession itself unreliable (§B).  Further, the series of clear material breaches of PACE and its Codes by the Inspector may have been fundamental in affecting the fairness of the confession and thus could be liable to be excluded under s.78 and particularly if the Inspector had acted in bad faith.

But uncertainties remain within the law. Although evidence may be excluded where obtained contrary to s.78, it may only occur in Jacks’s circumstances if it was obtained in a cynical attempt to evade the Codes which may be the case here (R v Chalkely).  Furthermore, ‘oppressive’ police conduct is not clarified but the conduct must be ‘fairly extreme’ whilst also taking into consideration the physical and psychological state of the defendant, which may be further problematic due to issues of unfairness.

B) Robert’s statement amounts to a confession for the purposes of s.82(1).  But as a certain amount of pressure is required s.76(2)(a) may not be applicable. 

As the confession was made as a result of the inducement from the Inspector it may engage s.76(2)(b), first in that it was made as a result of something ‘said or done’ by the Inspector which may render it unreliable in the circumstances existing at the time and secondly that Robert may be prone to making unreliable statements due to his mental instability. 

But for s.76(2)(b) to become active, the Inspector’s conduct must have been likely to render the confession unreliable in that a causal link is required between ‘anything said or done’ by the Inspector and the possibly unreliable confession by Robert.  This may be fulfilled here as the Inspector may have encouraged and influenced a false confession from a mentally impaired Robert of low IQ, and the provision applies regardless of whether the Inspector was aware of such conditions.  

Furthermore the Inspector may have breached Code C: 11.15 of the Codes, as Robert was interviewed without an appropriate adult being present.  Consequently such a breach may have been fundamental in affecting the fairness of the evidence under s.78  as Robert’s vulnerable mind may have been manipulated by the Inspector in the absence of this ‘appropriate adult’.

Hence, on the facts, Robert’s confession may be excluded under a number of provisions.  First under s.76(2)(b) as it may be unreliable in the sense that it was made as a result of the Inspector’s inducement.  Secondly, breach of the Codes may render the confession inadmissible under s.78 as Robert may not have confessed had an ‘independent’ person been with him and that the Inspector may have acted with ‘bad faith’.  Finally, the confession may also be excluded under s.77 which holds that as Robert is mentally ill and the case against him relies partly on his confession, and because his confession was obtained without an independent person being present, the jury should have been warned by the judge that there is special need for caution before convicting him in reliance on the confession. 

c) The main evidence implicating Clint is the tape recording rather than his silence at the station, an issue that will be looked at in relation to Brad.  But the manner in which the confession was obtained may infringe Clint’s right to silence and privilege against self-incrimination, under Art 6 and at common law, thus the confession may ought to have been excluded under s.78.  This is in consequence of the Inspector’s ‘improper compulsion’ in obtaining the evidence which has been obtained through ‘coercion’ (which does not have to be conducted directly) in defiance of Clint’s will, using Harry as a ‘State agent’ who may have caused Clint to make the statement under the instructions of the police and possibly through pressure.  In addition, Harry may have had purposes of his own to fulfil as a result of which he may have been determined to ensure a confession from Clint in order to receive certain benefits for himself thus the confession may also be excluded under s.76(2)(b) in that it was made in consequence of ‘something said or done’ which may render it unreliable.  

The use of deception to obtain a confession from Clint after failing to do so legally during questioning, further attacks the concept of a fair procedure at the heart of s.78, and thus should have been excluded as it may have adversely effect the fairness of the proceedings.  In addition, on the facts the jury were not informed of the circumstances in which the confession was obtained, otherwise they may have treated the confession with extreme caution (Allan v UK (2003) 36 EHRR 12 at [51]).

However, though not evident what ‘instructions’ were provided and how both men engaged in the conversation, if Harry had merely played a passive role and Clint made the confession voluntarily then the judge may have properly exercised his discretion to admit it as Harry could not be a ‘state agent’ pressuring Clint into making a confession during the equivalence of an interrogation.  But on the facts this may not be the case as Harry was operating under instructions from the police.

The overall consequence is that the whole transaction between Clint and Harry may be regarded as the functional equivalent of an interrogation.  Therefore Clint would not have been afforded any of the protections he would have in a police interview (such as those listed in the Codes) and such circumstances thus ‘…bypasses the many necessary protections developed over the last twenty years’.  Thus an attempt to circumvent the PACE Codes may be evident here which may render the tape inadmissible under s.78 for there is a greater requirement to do so in these circumstances as well as the possibility of bad faith.

d) Brad’s silence at interview may engage the use of s.34(1)(a) of the Criminal Justice and Public Order Act 1994 (CJPOA) which applies before and after charge. S.34(1)(a) allows the jury to ‘draw such inferences as appear proper’ from Brad’s silent stance if he had failed to mention a fact at interview which he might reasonably have been expected to mention and which is used in his defence in court. But s.34(1)(a) may not apply here, on the facts, as Brad has not failed to mention at interview, for the purposes of section 34(1), 'any fact relied on in his defence at trial'.  

Nonetheless, the jury must consider other evidence that implicates Brad, which in this case may be the documents, and realise that an adverse inference on his silence is not sufficient to render him guilty and thus must be independent on the finding of guilt.  Consequently, the judge should have directly warned the jury that in such circumstances they should not to draw an adverse inference from Brad’s silence and must be clearly told not to convict him for remaining silent as they may otherwise they be tempted to draw an inference, which may have been the case here. 

Assuming that Brad provided no further evidence at trial under s.35 the jury may draw an adverse inference from such silence.  But the judge must have in clear terms, asked Brad at the trial whether he was aware that the time has come when he may give evidence and asking whether he intends to do so and whether he realises that ‘the jury may draw such inferences as appear proper from failure to do so’ (s.35(2)).

Brad will only escape the drawing of such inference if he has ‘good cause’ not to answer a particular question (35(3)) and ‘good cause’ is where he is not entitled under statute not to answer a particular question or enjoys a legal privilege not to answer them or unless the court in exercising its discretion excuses him from answering it (35(5)), none of which are evident on the facts.

Furthermore, under R v Cowan, as Brad may not have testified at all the judge should have directed the jury; that the burden of proof remains on the prosecution and what the required standard is, that the defendant has the right to remain silent and is entitled to sit back let the prosecution prove its case, that the jury must not assume guilt simply because Brad had omitted to testify (s.38(3)), that the jury must be convinced that Brad has a case to answer before deciding whether any inference should be drawn from his failure to testify in that ‘the evidence must be of a strength sufficient to call for an answer by the [defendant]’ and lastly the jury must also take into account any evidence which might explain why Brad had decided not to give evidence. If they decide that his silence can only be sensibly attributed to his having no answer, or none that would withstand cross-examination, they may draw an adverse inference against him. 

Breaches of the Codes are also crucial when determining whether an adverse inference should be drawn.  Though not evident on the facts Brad must have received a caution from the Inspector at the time of arrest, and he must also have had the opportunity to receive legal advice, if any such rules are breached then the jury must be told that no adverse inference can be drawn from his silence.

 On the facts stated therefore, whether s.34 or s.35 applies, the judge should have followed the aforementioned procedures where applicable.  Thus Brad may not be liable for the offence solely due to his silence.  Brad’s right to remain silent during police questioning and his privilege against self-incrimination under Art. 6 of the European Convention on Human Rights may have also been breached.

Nonetheless deficiencies remain within the law for one in Brad’s situation. The possibility that Brad may have been silent for reasons other than guilt is not considered.  Thus the CJPOA may be insufficient if it does ‘…not address the principal causes of miscarriage of justice:  police bias and witness suggestibility’. 

In his summing up the judge has assumed the role of the jury by commenting on the factual issues and weight of the evidence provided.  Such comments have left the jury with the impression that the rational decision would be to convict all parties, thus not following the guidelines under the ‘specimen directions’. A direction about the relevant law, referring to the key pieces of evidence and identifying the issues therein would have sufficed.  Furthermore, the judge has wrongly favoured the prosecution rather than presenting a balanced summing-up containing ‘all the possible conclusions’ open to the jury.  His comments may be regarded as depriving the parties’ to a fair trial, especially as his views carry great weight with the jury.  Moreover, he has failed to identify the defence and give any direction as to the relevant law.  Thus the judge has failed to present the contentions in a fair and balanced manner, which may render the convictions unsafe and be quashed.   

The judge may have displayed further incompetence by failing to deliver a warning in relation to Mrs Smith’s identification evidence.  This should have consisted of warning the jury of the need for caution before convicting on the strength of Mrs Smith’s testimony in that an honest convincing ID can still be a mistaken one, that the ID was made in circumstances where she could easily have been mistaken as she was ‘talking’ to her neighbour at the time, that she may not have seen them more than once, that she ‘might’ have seen the defendants and finally, a direction that Mrs Smith’s ID may be a weak one, due to her old age, should also have been provided.  Thus the judge ought to have delivered such a warning due to the possibly feeble nature of the ID, which may not ‘corroborates’ other evidence in this case, in failing to do so the convictions, again, may be rendered unsafe and thus be quashed.

Though not clear on the facts, it must be stated that should the prosecution have attempted to use the confessions of Jack and Robert against Clint and Brad this may be permitted, and thus the judge may not have been wrong in stating that the confessions can be used against the co-accomplices (R v Hayter [2005] UKHL 6).  But this depends on whether those confessions should have initially been admitted.

Hence, under the aforesaid reasons, the respective appellants have strong grounds for appeal but further evidence, particularly in Brad’s case, is necessary to reach an absolute conclusion as to whether a successful appeal can be lodged.

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