However, there are arguably other pressing grounds to exclude the confession here under s.76 PACE. Has the confession been obtained by oppression? Once the defence raises the issue and it is accepted by the judge as possibility, the burden is on the prosecution to prove beyond reasonable doubt that it has not been so obtained. Under s.76 (2) (a) if the prosecution are unable to establish beyond reasonable doubt that the confession was not made as a result of oppression, the accused’s confession will be held inadmissible even if there is plenty of other evidence in the case confirming its reliability. Does the implied threat by Nolan to Charles amount to oppression? The court is likely to be interested to the Nolan’s statement that he would allow Charles to go when he would admit the crime. Oppression is partly defined in s.76 (8) of PACE as including ‘torture, inhumane or degrading treatment, and the use or threat of violence (whether or not amounting to torture)’. It is possible that Nolan’s statement could have been understood as he was going to detain Charles for an indefinite time while Charles was suffering from claustrophobia, which may well fall into ‘torture, inhumane or degrading treatment’. However, a casual link has to be established between the threats and the confession and Charles must be able to confirm that this threat, as well as his illness, operated on his mind at the time in question.
It is submitted that uttering such statement may not fall within the partial statutory definition of oppression. However, in Fulling the Court of Appeal approved the Shorter Oxford Dictionary of oppression as the ‘exercise of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc or the imposition of unreasonable or unjust burdens.’ The court added that it would be hard to envisage any circumstances in which oppression would not entail some impropriety on the part of the interrogator. The statement of Nolan to Charles appears to be on the borderline of oppression. It could be argued it was psychologically burdensome to deliver such statement. The closest parallel authority is Paris, Abdullahi and Miller, where M who was almost mentally handicapped was interviewed in a bulling and hectoring manner, only confessing to having murdered a prostitute after denying the offence 300 times. Lord Taylor CJ declared that M’s confession was wrongly admitted. There appears to be a good chance of persuading the court that the confession may have been obtained by oppression as Charles was asked repeatedly about his involvement in the robbery, and even chance that the prosecution would be unable to prove beyond reasonable doubt that it was not.
Even if the argument on oppression failed, the matters relied on could be used to support an argument for exclusion based on s.76 (2) (b). The words uttered by Nolan might have amounted to ‘something said’ which was likely ‘in the circumstances existing at that time’, to render unreliable any confession that Charles might have made in consequence. In R v Goldenberg, however, the ‘something said or done’ limb of the test was held not to be satisfied by the conduct of the maker of the confession. Thus, the confession of a heroin addict who confessed in order to get drugs, could not be excluded under s. 76 (2) (b). The section’s use of the expression ‘in consequence of’ showed that a causal link had to be established between what or said or done and the subsequent confession. Something external and something influenced on the accused was needed. However, ‘the circumstances existing at the time’ of Charles confession is to be taken in to account. In Charles case, part of the circumstances existing at the time included the fact that he was feeling increasingly nervous and unwell for his claustrophobia. There appears to be no question of his having done so to such an extent that he was unable to appreciate the significance of the question, or of his own answer. But the probability that he was suffering from claustrophobia might be thought to add to the likelihood of unreliability. It seems clear that the Charles’s own mental state may be part of the circumstances under s.76 (2)(b). Thus, in McGovern (1991), the physical condition and particular vulnerability of the defendant, who was six months pregnant and of low intelligence, were held to have been part of the background against which a submission should have been considered. The judge should also take into account Charles’s learning disability [Everett]. It does not matter whether Nolan had actually spotted Charles’s mental age or learning disability. The Act sets an objective test.
If a submission under s.76 (2)(b) fails, it is possible that one under s.78 and/or 82(3) PACE might succeed if the prejudicial effect of admitting of Charles’s confession is likely to exceed its probative value.
It is wroth to mention that, Charles on first occasion shook his head on the repeated allegation of robbery put by Nolan and kept silent. Adverse inferences can be drawn in certain circumstances from the accused’s silence during police interrogation. The fact that Charles remained silent in the face of that accusation may be left to the tribunal of fact which can then decide whether or not to draw an adverse inference from it [Mitchell] and [s.34 of CJPOA 1994].
The residuary evidential issues include, the four hours of interviewing which may have been a breach of Para 12.7, which requires breaks at recognised meal times and short breaks for refreshment at intervals of approximately two hour, subject to the interviewing officers discretion.
It is mentioned in the scenario that Charles has learning disability. s.77 of PACE provides that as the prosecution case against Charles, a mentally handicapped person, relies substantially on a confession that was not made in the presence of an independent person, the court shall warn the jury of the special need for caution before convicting Charles in reliance on the confession Lamont.
The admissibility of Bill’s confession will be discussed now. What has happened is that, without a caution, Nolan has confronted Bill with a part of Charles’s confession in such circumstances as to invite comment on it. He should have cautioned Bill first. The obligation to caution under Para 10.1 of Code C was held in Shah (1994) to apply where there are grounds for suspicion. These can fall short of evidence supportive of a prima facie case, but a mere hunch or sixth sense will not suffice. And in Nelson (1998), the CA said that the appropriate time for administration of the caution is when, on an objective test, there are grounds for suspicion, falling short of evidence that supports a prima facie case of guilt, that an offence has been committed by the person being questioned. Certainly, after the interview with Charles, Nolan must have had more than a hunch. At that stage, there were grounds to suspect Bill of an offence, and the words ‘’Charles told us you were involved’’ were uttered in circumstances which implied the question ‘what do you say about that?’ There appears to be a good basis for a submission that there was an improper failure to caution and that Bill’s reaction should be excluded under s.76 or failing that, s.78.
It appears that, when Bill asked whether he could have a solicitor, Nolan replied that it might be delayed until the next day. Nolan would have acted correctly if the reason he gave for delaying access to a solicitor was a justified one. On the basis that the robbery was likely to lead such a gain, it was a serious arrest able offence and delay in permitting Charles access to legal advice might have been justified [s. 116 (6) (e) PACE]. Delaying for the reason of busy telephone line may not be justified. Moreover, the section requires that Nolan would have to be an officer of the rank of superintendent or above. The defence counsel may argue on this ground. In R v Samuel, the CA stressed that the prosecution has a formidable task in satisfying the court that there are reasonable grounds for such a belief.
There are possible grounds for unreliability given ‘something said or done’ could be the circumstance of tricks or lie by Nolan. For exclusion on grounds on s.76 (2)(b) there is no need for police impropriety. It also appears that Nolan acted with bad faith with regard to the trick over Bill. If Nolan was acting in bad faith, a court would be more likely to exclude the confession, either under s.76 (2) (b) or under s.78, than if he was not. In Walsh (1990), it was said that bad faith might make substantial or significant a breach which might not otherwise do. It may be significant that it was the defendant and not his legal adviser who was tricked. Thus, a confession obtained as a result of deception will be danger of being excluded, but the particular circumstances of the case are important.
The position is more difficult if Nolan was acting in good faith. A confession will not be excluded under s. 76 (2) (b) merely because the accused had a special motive for making it. As Lord Lane CJ said in Rennie (1982), very few confessions are inspired solely by remorse. But what we have here are words uttered by Nolan to Charles that trigger a particular fear which in turn leads to the confession. The fact that the confession is in fact proved reliable by the subsequent discovery of the jewellery is no bar to the operation of s.76 (2) (b).
Even if Charles’s evidence is inadmissible, evidence can be given that the stolen jewellery was found in the warehouse on Oxford road under s.76 (4) PACE. The prosecution may not reveal that the jewellery was found in consequence of a statement made by Charles, it may only prove the facts discovered as a result of Charles’s confession.
It is submitted that, if in the course of Charles’s statement to the police, he makes allegations implicating Bill, in the commission of the offence; this statement cannot be adduced by the Crown as evidence against Bill. An extra-judicial confession is generally not admissible evidence against the co-accused of its maker (Gunewardene). As JSB Specimen Direction No 32 makes clear, Charles’s statement, made in Bill’s absence implicating Bill can not be evidence against him, and if it becomes revealed to them the jurors must be instructed to disregard it. The jury will be entitled to treat the exculpatory part as evidence of the facts stated [Duncan (1981) ; Sharp (1988) ]. This is important as Bill raises the defence of duress at trial.
Bill can adduce evidence of Charles’s confession where it has not been ruled inadmissible under s.76 or s.78, if that evidence is relevant to the proof of the case against Charles and advances Bill’s defence of duress. In Myresthe House of Lords determined that an accused in a joint trial could make use of a confession made by a co-accused but not used but the prosecution, provided that i) it was relevant to establish the accused’s defence or undermine the Crown’s case against him, ii) the confession was made voluntarily, and iii) it was relevant both as to credibility and the facts in issue
To conclude, it can be safely said that whether the recorded conversation will be admissible or not will depend on Regulation of Investigatory Powers Act 2000 and s.78 PACE; Charles’s confession is highly unlikely to be admissible by the application of s.76 (2)(a) and the admissibility of Ben’s confession will depend on the successful application of s.76 (2)(b) and s.78 PACE.
BIBLIOGRAPHY
TEXT BOOKS
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Dennis, The Law of Evidence (1999)
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Adrian Keane, Modern Law of Evidence (5th ed. 2000) Butterworths
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Alan Taylor, Principle of Evidence, (2nd ed. 2000) Cavendish Publishing.
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Roderick Munday, Evidence (2001), Butterworths
- The Principles of Criminal Evidence, Zuckerman, A.A.S. Oxford University Press, 1989.
STATUTE BOOK
Roderick Munday, Butterworths Student Statutes, Evidence (4th ed. 2000)
CASE BOOK
Butterworths Police and Criminal Evidence Act Cases Cousens, Michael, Blair, Ruth M., 1996
WORLD WIDE WEB
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Lexis-Nexis
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West Law
ARTICLES
- Ashworth, ‘Should the police be allowed to use deceptive practices?’ (1998) 114 Law Quarterly Review 109
- Ashworth, ‘Testing Fidelity to Legal Values: Official Involvement and Criminal Justice’ (2000) 63 Modern Law Review 633
- Maguire, John, ‘Covert and Deceptive Policing in England and Wales: Issues in Regulation and Practice’ (1996) 4 European Journal of Crime, Criminal Law and Criminal Justice 316
- Mirfield, ‘Human rights Regulation of Investigatory Powers Act 2000: Part 2: evidential aspects’ [2001] Crim LR 91
- Birch, ‘The Pace Hots Up: Confessions and Confusions Under the 1984 Act’ [1989] Crim LR 95
- Dennis, ‘Miscarriages of Justice and the Law of Confessions: Evidentiary Issues and Solutions’ (1993) Public Law 291
- The Police and Criminal Evidence Act 1984 (Tape-recording of Interviews)
The Stationery Office Books The Stationery Office Books, 1992
OTHER MATERIALS
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Law Questions and Answers, Law of Evidence, Blackstone Press, 2nd edition, 2001.
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Law Questions and Answers, Evidence, Christopher Allen, Cavandish Publishing, 4th edn. 2000
The Principles of Criminal Evidence, Zuckerman
Dennis, ‘Miscarriages of Justice and the Law of Confessions: Evidentiary Issues and Solutions’ (1993) Public Law 291
(35394/97) (2001) 31 E.H.R.R.
Mirfield, ‘Human rights Regulation of Investigatory Powers Act 2000:Part 2: evidential aspects’ [2001] Crim LR 91
The Police and Criminal Evidence Act 1984 (Tape-recording of Interviews) The Stationery Office Books The Stationery Office Books, 1992
Birch, ‘The Pace Hots Up: Confessions and Confusions Under the 1984 Act’ [1989] Crim LR 95
This section was discussed in relation to the issue of ‘covert surveillance’ (above)