Learning Outcomes
After studying this article, you will be able to explain and apply the rules governing the admissibility of confession evidence in criminal proceedings under ss.76 and 78 of the Police and Criminal Evidence Act 1984 (PACE). You will be able to identify when a confession must or may be excluded, define key terms such as oppression and unreliability, and apply these principles to practical SQE1-style scenarios.
SQE1 Syllabus
For SQE1, you are required to understand the principles and procedures for admitting and excluding confession evidence in criminal trials. Focus your revision on:
- the statutory definition of a confession and its relevance in criminal proceedings
- the mandatory and discretionary grounds for excluding confession evidence under ss.76 and 78 PACE 1984
- the meaning and application of oppression and unreliability
- the burden and standard of proof in exclusion applications
- the procedural steps for challenging confession evidence and the effect of exclusion
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What are the two mandatory grounds for excluding a confession under s.76 PACE 1984?
- Who bears the burden of proof when the admissibility of a confession is challenged under s.76?
- What is the difference between exclusion under s.76 and exclusion under s.78 PACE 1984?
- Give an example of conduct that could amount to "oppression" for the purposes of s.76(2)(a) PACE 1984.
Introduction
Confession evidence is often central to the prosecution’s case in criminal trials. However, strict rules govern when such evidence can be admitted. Sections 76 and 78 of the Police and Criminal Evidence Act 1984 (PACE) set out both mandatory and discretionary grounds for excluding confessions to protect the fairness and integrity of criminal proceedings. This article explains these rules and how they are applied in practice.
Confession Evidence: Definition and Relevance
A confession is 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.
Key Term: confession
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.
Confessions can be powerful evidence of guilt, but only if obtained fairly and reliably. The law provides specific safeguards to prevent the use of confessions obtained through improper means.
Exclusion of Confession Evidence: Section 76 PACE 1984
Section 76 PACE 1984 provides that a confession is inadmissible if it was, or may have been, obtained:
- by oppression of the person who made it; or
- in consequence of anything said or done which was likely, in the circumstances existing at the time, to render any confession unreliable.
If the defence raises either ground, the court must exclude the confession unless the prosecution proves beyond reasonable doubt that the confession was not so obtained.
Key Term: oppression
Includes torture, inhuman or degrading treatment, and the use or threat of violence. It also covers conduct that is harsh, wrongful, or abusive of power.Key Term: unreliability
Circumstances where anything said or done was likely to make a confession unreliable, such as inducements, threats, or the suspect’s vulnerability.
The Test Under Section 76
- If the defence alleges oppression or unreliability, the court must hold a hearing (usually a voir dire) to determine admissibility.
- The prosecution must prove, beyond reasonable doubt, that the confession was not obtained by oppression or in circumstances likely to render it unreliable.
Oppression: What Does It Mean?
Oppression is not limited to physical violence. It includes psychological pressure, intimidation, or any conduct that overbears the suspect’s will. Examples include:
- prolonged, aggressive questioning
- denying food, rest, or legal advice
- threats or actual violence
Unreliability: What Circumstances Apply?
A confession may be unreliable if, for example:
- the suspect was promised a benefit or threatened with a disadvantage
- the suspect was denied access to legal advice
- the suspect was intoxicated, ill, or otherwise vulnerable
- the police misrepresented the strength of the evidence
Worked Example 1.1
A suspect is interviewed for several hours without a break, is denied access to a solicitor, and is told by officers that they will be released only if they confess. The suspect then admits to the offence.
Answer: The confession may be excluded under s.76 PACE 1984. The prolonged questioning, denial of legal advice, and inducement to confess could amount to oppression and/or render the confession unreliable. The prosecution would have to prove beyond reasonable doubt that the confession was not obtained in this way.
Discretionary Exclusion: Section 78 PACE 1984
Section 78 PACE 1984 gives the court a general discretion to exclude any prosecution evidence (including confessions) if its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
Key Term: discretionary exclusion
The court’s power under s.78 PACE 1984 to exclude prosecution evidence if admitting it would adversely affect the fairness of the proceedings.
This discretion is broader than s.76. Even if a confession is not excluded under s.76, the court may still exclude it under s.78 if, for example, there has been a significant breach of the PACE Codes of Practice (such as failing to caution the suspect or denying legal advice).
Worked Example 1.2
During a police interview, the suspect is not cautioned and is not told of their right to legal advice. The suspect confesses. The defence applies to exclude the confession under s.78.
Answer: The court may exclude the confession under s.78 if it finds that the failure to caution and inform the suspect of their rights had such an adverse effect on the fairness of the proceedings that the confession should not be admitted.
Burden and Standard of Proof
When the defence challenges a confession under s.76, the prosecution must prove beyond reasonable doubt that the confession was not obtained by oppression or in circumstances likely to render it unreliable. For discretionary exclusion under s.78, the burden is on the defence to persuade the court that admitting the evidence would be unfair, but the standard is the balance of probabilities.
Procedure for Challenging Confession Evidence
- The defence raises the issue of oppression or unreliability (s.76) or unfairness (s.78).
- The court holds a voir dire (a hearing in the absence of the jury) to determine admissibility.
- If the confession is excluded, it cannot be used as evidence of guilt.
Exam Warning
If a confession is excluded under s.76, any evidence discovered as a result of that confession (e.g., the location of stolen property) may still be admissible if obtained independently.
Confessions to Persons Not in Authority
A confession does not have to be made to a police officer. It can be made to anyone, including friends or undercover officers. However, the same rules on oppression and unreliability apply if the confession is to be used in evidence.
Relationship Between ss.76 and 78 PACE 1984
- Section 76 provides mandatory grounds for exclusion (oppression or unreliability).
- Section 78 provides a discretionary ground for exclusion (unfairness).
- Both sections aim to ensure that only fair and reliable confession evidence is admitted.
Worked Example 1.3
A suspect confesses after being told by police that there is CCTV evidence against them, when in fact there is none. The confession is not obtained by violence, but the defence argues it is unreliable.
Answer: The confession may be excluded under s.76(2)(b) as the police misrepresentation could render the confession unreliable. It may also be excluded under s.78 if the court finds that admitting it would be unfair.
Key Point Checklist
This article has covered the following key knowledge points:
- A confession is any statement wholly or partly adverse to the person who made it.
- Section 76 PACE 1984 requires exclusion of confessions obtained by oppression or in circumstances likely to render them unreliable.
- Oppression includes both physical and psychological pressure.
- The prosecution must prove beyond reasonable doubt that a confession was not so obtained.
- Section 78 PACE 1984 gives the court discretion to exclude confession evidence if admitting it would adversely affect the fairness of the proceedings.
- The court may hold a voir dire to determine admissibility.
- Confessions can be excluded even if true, if obtained unfairly or unreliably.
Key Terms and Concepts
- confession
- oppression
- unreliability
- discretionary exclusion
