The defendant said that his confession should not have been admitted in evidence it having been given when he had not been advised of his rights whilst at the police station because of his inebriation.
Held: The appeal failed. A confession is, prima facie, admissible if ‘relevant’ to a matter in issue in the proceedings. Under section 76 for the reliability of a confession to be challenged all that is required is a ‘representation’ to the Court that the confession meets the conditions in section 76(2)(b). The representation need not demonstrate that the confession ‘was’ unreliable; all that need be advanced is that the confession ‘may have been’ unreliable. Section 76 is concerned to protect against a risk of unreliability. The test for the Court is not whether the confession was reliable per se. The Court is concerned not with the intrinsic quality of the confession as evidence but with the manner in which it came into being and as to the risk of it being unreliable. This is evident from section 76(2) which states that a confession may be excluded ‘notwithstanding that it may be true’. The focus of the analysis is the position that pertained at the time of the impugned confession; cf ‘in the circumstances existing at the time’ in section 76. The Court therefore cannot examine the confession in the light of other evidence which might arise in the course of the trial insofar as that evidence does not bear upon the conditions prevailing at the time. The words in section 76(2)(b) ‘anything said or done’ include acts and omissions i.e. failures to do something; the distinction between acts and omissions will in any event frequently be artificial. Culpability on the part of the police is not a sine qua non to exclusion of a confession. The assessment under section 76 PACE will take into account whether there has been adherence to the Codes to PACE. A failure to adhere to a requirement in PACE is not mere ‘rigmarole’. Not every breach of PACE or the Code will lead to the exclusion of the evidence in consequence thereof. If there has been a breach the Court will consider whether it was a material breach i.e. whether had the breach not occurred it would have made a difference. the position under section 78 PACE 1984 which concerns fairness will not normally differ from that based upon the application to the same facts of section 76 PACE, however section 78 could in principle exert a broader protective sweep than section 76 and therefore it acts as an override protection for a detainee.
As to the suggestion that she had not been allowed access to a solicitor: ‘ the Appellant voluntarily chose to be interviewed without receiving advice and without the assistance of a solicitor during her interview. But critically, she was given clear and repeated offers of advice both in the form of a face to face consultation and in the form of access to telephone advice.’ The appeal on that ground failed.
 EWHC 283 (Admin)
Criminal Evidence Act 1984 76 78
Cited – Scott v The Queen PC 1989
The Board was asked whether sworn depositions of two deceased witnesses should have been admitted.
Held: A warning should be given when admitting identification involving communications between spouses. A conviction based on uncorroborated . .
Cited – Regina v Gill CACD 2004
Police officers had continued the interview of a suspect despite it becoming clear that he suffered mental incapacity. The trial judge having heard an application to have the interview excluded at an early point and only gave his reasons much later, . .
Cited – Charles v Crown Prosecution Service Admn 26-Nov-2009
The police were admitted to have failed to comply with Code of Practice A. The defendant appealed against the conviction on his admission.
Held: A failure to adhere to a requirement in PACE is not mere ‘rigmarole’: ‘These provisions are not a . .
Cited – Regina v Dhorajiwala CACD 9-Jun-2010
The defendant appealed against her conviction for theft. She had been accused of stealing money over many months from the till at the pharmacy where she worked. She said that a confession in interviews conducted by civilian investigators should not . .
Cited – Regina v Liverpool Juvenile Court ex parte R 1988
R was charged with burglary. He objected to the admission of evidence of a confession to a police officer, saying that it had been improperly obtained. Both prosecution and defence suggested the need for a voir dire, but the magistrates declined. . .
Cited – Regina v Samuel CA 1988
The defendant had been arrested on suspicion of armed robbery. He asked for a solicitor, but one was refused under section 58 of the 1984 Act. He appealed against his conviction saying that he should have been allowed access to a solicitor.
Updated: 29 November 2021; Ref: scu.521235