Principles and procedures to admit and exclude evidence - Co...

Learning Outcomes

This article explains the statutory rules governing confession evidence in criminal proceedings under sections 76 and 78 of the Police and Criminal Evidence Act 1984 (PACE) and situates them within the SQE1 FLK2 syllabus. It clarifies the statutory definition of a confession, the hearsay exception for confessions, and the difference between mixed and purely inculpatory statements. It details the mandatory grounds for exclusion under s.76 based on oppression and unreliability, the discretionary power to exclude unfair evidence under s.78, and how these provisions interact with PACE Codes of Practice. It analyzes the allocation of the burden and standard of proof on exclusion applications, and reviews the procedure for raising and determining admissibility, including voir dire hearings in the Crown Court and contested admissibility in the magistrates’ court. It examines the treatment of confessions made to persons not in authority, the effect of exclusion on derivative evidence, and the relationship between confession admissibility, vulnerability safeguards, and the right to a fair trial under Article 6 ECHR.

SQE1 Syllabus

For SQE1, you are required to understand the principles and procedures governing the admissibility and exclusion of confession evidence under ss.76 and 78 PACE 1984, with a focus on the following syllabus points:

• the statutory definition and breadth of confession evidence under PACE s.82(1) and its significance
• the conditions and procedures for admitting and excluding confession evidence in criminal cases
• mandatory exclusion under s.76 PACE 1984: requirements and interpretation of "oppression" and "unreliability"
• discretionary power to exclude evidence under s.78 PACE 1984 for unfairness
• burden and standard of proof in exclusion applications
• procedures for voir dire and exclusion hearings
• the effect of exclusion on derived evidence and its continued admissibility
• admissibility of confessions made to persons not in authority, including co-defendants or private individuals
• the linkage between evidential rules, trial fairness, and the right to a fair trial under Article 6 ECHR

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.

1. What are the two mandatory grounds for excluding a confession under s.76 PACE 1984?
2. Who bears the burden of proof when the admissibility of a confession is challenged under s.76?
3. What is the difference between exclusion under s.76 and exclusion under s.78 PACE 1984?
4. Give an example of conduct that could amount to "oppression" for the purposes of s.76(2)(a) PACE 1984.

Introduction

Confession evidence can be a decisive element in the outcome of criminal trials. Its powerful nature means that robust statutory rules regulate when, and how, such evidence can be admitted or excluded. Sections 76 and 78 of the Police and Criminal Evidence Act 1984 (PACE) constitute the primary legal framework to ensure that only voluntary, reliable, and fair confessional evidence reaches the court. These provisions operate alongside broader principles such as the right to a fair trial under Article 6 of the European Convention on Human Rights, imposing essential safeguards on police investigatory practices and the integrity of the criminal justice system.

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. This wide statutory definition (PACE s.82(1)) covers oral and written admissions as well as non-verbal acts or gestures intended as admissions (such as a nod or pointing out a location), and extends to mixed statements that combine adverse and exculpatory elements.

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 (PACE 1984, s.82(1)).

Confessions are an exception to the general rule excluding hearsay: a defendant’s out-of-court confession is admissible as direct evidence of guilt under PACE s.76(1), provided it is relevant and not excluded for statutory or fairness reasons. Mixed statements, containing both inculpatory and exculpatory content, are generally admitted as a whole.

The importance of strict regulation is clear: improperly obtained confessions raise serious concerns regarding reliability and respect for individual rights, particularly where improper investigatory conduct or vulnerabilities are present.

Exclusion of Confession Evidence: Section 76 PACE 1984

Section 76 PACE 1984 sets out two mandatory bases for excluding confession evidence. These are:

• if the confession was, or may have been, obtained by oppression of the person who made it; or
• if the confession was, or may have been, obtained in consequence of anything said or done which was likely, in the circumstances existing at the time, to render any confession unreliable.

Key Term: oppression
Includes torture, inhuman or degrading treatment, the use or threat of violence, and other forms of pressure or abuse of power. This is interpreted to cover not only physical but also psychological coercion, persistent threatening or aggressive questioning, or unlawful inducement.

Key Term: unreliability
Circumstances in which anything said or done was likely, in the circumstances at the time, to make a confession unreliable, such as inducements, trickery, significant breaches of safeguards, or exploitation of vulnerability.

The Test Under Section 76

When the defence alleges oppression or unreliability, the court must conduct a hearing (known as a voir dire) in the absence of the jury (Crown Court). During this hearing:

• The prosecution must prove, beyond reasonable doubt, that the confession was not obtained by oppression and was not rendered unreliable by anything said or done.
• The standard represents the highest level of proof, reflecting the seriousness of admitting confessions as evidence.

If the prosecution fails to meet this standard, the confession must be excluded, even if it may be true.

A confession may be excluded on either basis:

• Oppression: where police conduct overbears a suspect’s will, such as repeated threats, violence, psychological intimidation, shouting, deprivation of sleep, rest, food, or essential medication, or holding out unlawful inducements such as promising leniency for a confession.
• Unreliability: where, for example, a suspect is denied access to legal advice, is misled as to the strength of evidence, is questioned at great length or in circumstances of vulnerability, is offered inducements or threatened with adverse consequences, or where investigatory practices breach PACE Codes of Practice in a way likely to impact voluntariness or accuracy.

Oppression: Meaning and Scope

"Oppression" in s.76(2)(a) is explained in s.76(8): it includes "torture, inhuman or degrading treatment and the use or threat of violence." However, this is not an exhaustive definition and the courts have interpreted oppression to include a wide array of improper conduct.

Examples of oppression include:

• Repeated or prolonged aggressive questioning designed to break a suspect’s resolve
• Deprivation of basic needs such as sleep, food, water, or medical attention during questioning
• Utilising threats, intimidation or actual violence
• Threatening adverse legal consequences for non-cooperation
• Unlawful inducements to confess

Not every breach of PACE or departure from best practice will amount to oppression—context and severity matter. The focus is on conduct that wrongfully compels or overbears the suspect's will.

Unreliability: The "Likelihood" of Rendering a Confession Unreliable

Section 76(2)(b) aims not merely at confessions that are in fact unreliable, but at any which may have been obtained in circumstances likely to render a confession unreliable. The concern is not whether the specific confession was untrue or mistaken, but whether the process created a significant risk that any confession would be unreliable.

Typical circumstances supporting exclusion for unreliability include:

• Promises of leniency (e.g., suggesting a suspect will be granted bail, receive a lower sentence, or be released if they confess)
• Threats of harsher charges, prolonged detention, or other negative consequences
• Denial or significant delay of access to legal advice, particularly in circumstances where the suspect is inexperienced or especially vulnerable
• Misrepresentation of the evidence or the strength of the prosecution case (e.g., falsely asserting that DNA, fingerprints, or witnesses conclusively implicate the suspect)
• Breaches of the PACE Codes of Practice or failures to provide a caution
• Failure to provide an appropriate adult for juveniles or mentally vulnerable persons, as required under PACE

The causal link between what was said or done and the likelihood of unreliability must be established on the balance of probabilities for s.78, but for s.76 the prosecution must disprove the connection beyond reasonable doubt.

Additional Examples of Oppression and Unreliability

• A police officer threatens to detain the suspect indefinitely unless they confess.
• Repeated denial of legal advice, sleep, or food in situations calculated to elicit an admission.
• Promises to reduce charges, suggest bail will be easier, or otherwise unlawfully influence suspect’s choices.
• Fabricating or exaggerating evidence or the likely consequences of silence.

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 of PACE 1984 gives the court wide 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. The discretion applies to all prosecution evidence—not just confessions.

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.

Even where s.76 does not mandate exclusion (i.e., the court is not satisfied the confession was obtained by oppression or unreliability), the court may exercise discretion to exclude under s.78, for example in response to major breaches of PACE Codes (for example, refusal to allow access to a solicitor in a non-urgent situation), failure to caution, non-compliance with appropriate adult requirements, or covert misuse of investigatory powers.

When considering whether to exclude evidence under s.78, the court assesses:

• How serious and substantial the breach of procedure was
• Whether the breach was deliberate
• The significance of the evidence and its impact on trial fairness
• Whether remedies short of exclusion (such as a judicial direction to the jury) would suffice

A single minor technical breach will not usually justify exclusion; the breach must be significant or substantially impact fairness (see R v Walsh).

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.

The scope of s.78 overlaps with s.76 in cases involving confessions, but s.78 provides a broader ground and is discretionary.

Burden and Standard of Proof

• Where a confession is challenged under s.76 (i.e., oppression or unreliability), the burden lies on the prosecution to prove, beyond reasonable doubt, that the confession was not obtained by these means. If the prosecution cannot do so, exclusion is mandatory.
• For discretionary exclusion under s.78, the burden is on the party seeking exclusion (usually the defence) to satisfy the court, on the balance of probabilities, that admission would have such an adverse effect on the fairness of the trial that exclusion is warranted.

Where a co-defendant seeks to admit the confession of another (under s.76A), the burden is on the party seeking to introduce the confession to establish its admissibility on the balance of probabilities.

Key Term: burden and standard of proof
For s.76: Prosecution must prove voluntariness beyond reasonable doubt. For s.78: Defence must prove unfairness on the balance of probabilities.

Procedure for Challenging Confession Evidence

The process for challenging the admissibility of confession evidence is as follows:

• The defence, after reviewing the disclosure and case file, raises the issue that the confession was obtained by oppression or in circumstances likely to render it unreliable (s.76), or otherwise objects based on lack of fairness (s.78).
• The court then holds a voir dire, i.e., a trial within a trial (before the jury is empanelled or in their absence, or before magistrates in summary proceedings), to determine the question of admissibility.
• Both prosecution and defence may call relevant witnesses (such as interviewing officers or independent observers) who can be cross-examined on matters such as conduct of the interview, compliance with Codes, the suspect’s physical or mental state, and voluntariness.
• The judge (or magistrates) rules on admissibility in light of the statutory tests.

Key Term: voir dire
A hearing (in the absence of the jury, in Crown Court) in which the court adjudicates the admissibility of evidence.

If the confession is excluded, it cannot be relied upon as evidence of guilt in the main trial. However, the prosecution may still be able to use evidence obtained as a result of the confession (such as physical evidence or information discovered independently), provided that it is not itself inadmissible or tainted by direct unfairness.

Worked Example 1.3

Evidence is found at a location only as a result of the defendant’s inadmissible confession. Can the prosecution still rely on that evidence?

Answer:
Yes, if the evidence is obtained independently and there is no direct unfairness in its method of acquisition, physical evidence derived from a confession excluded under s.76 may still be admissible (PACE s.76(4)), unless separate grounds for exclusion apply.

Practical Considerations

Legal representatives must scrutinise the circumstances of police interviews: Was the caution appropriately administered? Was the right to legal advice respected? Were vulnerable suspects provided an appropriate adult? Was the suspect’s will overborne through improper conduct?

It is important for practitioners to obtain, review, and, where necessary, seek the audio or video recording of interviews, as well as custody records and notes regarding compliance with Code C and D.

Confessions to Persons Not in Authority

PACE’s definition of confessions covers any statement adverse to the suspect, whether made to a police officer, another person in authority, or to a private individual (such as a friend, co-defendant, or undercover operative). The same statutory rules apply to admissibility: if the circumstances surrounding the confession raise an issue of oppression or unreliability, mandatory exclusion may be required.

For confessions made to private persons, the threshold for finding oppression is generally higher, but where third parties act as agents of the police, the statutory protections remain fully applicable.

When a co-defendant wishes to adduce the confession of another, specific statutory safeguards (PACE s.76A) and burdens apply, and such applications should be carefully scrutinised, especially regarding allegations of oppression or unreliability.

Relationship Between ss.76 and 78 PACE 1984

• Section 76 establishes mandatory statutory rules: if the defence makes a prima facie case that a confession was, or may have been, obtained by oppression or unreliability, and the prosecution cannot prove beyond reasonable doubt that this is not so, the court must exclude the evidence.
• Section 78 gives the court discretion to exclude any prosecution evidence (including, but not limited to, confessions) if admitting it would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted.
• Both sections operate to ensure that only voluntary and reliable confession evidence, not unfairly obtained, is placed before the court in criminal trials.

An important point of distinction: Exclusion under s.76 is mandatory upon the facts being found; exclusion under s.78 is at the court's discretion, balancing the interest of justice and fairness to the defendant.

Worked Example 1.4

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 in the circumstances.

Defences, Safeguards, and the Right to a Fair Trial

Admissibility rules for confessions support the central principle of trial fairness (ECHR Art. 6). The exclusion of involuntary or unreliable confessions is essential to ensure that convictions are not based on evidence obtained by improper means and that the defendant receives a fair trial.

The court must also ensure that exclusion is not used to circumvent justice without genuine concern for voluntariness or reliability. Breaches of the PACE Codes—such as denying legal advice or failing to caution—will not automatically result in exclusion unless they substantially affect fairness, voluntariness, or reliability, though persistent or significant breaches increase the likelihood of exclusion under either s.76 or s.78.

Coincidence and Relationship with Other Evidential Rules

While confessions are an exception to hearsay and can be admitted as evidence even when made out of court, their evidential value and admissibility is subject to compliance with statutory procedures and safeguards. Evidence that is only relevant by virtue of an excluded confession will also be excluded unless it is admissible independently.

The exclusion provisions also overlap with other fairness-based evidential rules—for example, the court retains the common law discretion to exclude evidence if its prejudicial effect outweighs its probative value, although in most criminal proceedings, ss.76 and 78 will be the main statutory routes for exclusion.

Confessional Evidence and Special Categories

• Vulnerable suspects and juveniles: Where the confession is made by or to a vulnerable suspect, additional requirements apply, including the need for an appropriate adult during interviews. Failure to comply increases the risk of exclusion on unreliability or unfairness grounds.
• Delay in access to legal advice: Delay is only justified in rare and exceptional cases, and any confession obtained during the delay is subject to especially rigorous scrutiny.
• Agents provocateurs and undercover officers: Where confessions are elicited by third parties acting as agents of the police, any improper inducement or deception will be closely examined for unfairness, with the possibility of exclusion under both s.76 and s.78.

Misuse of Confessions: The Risk of Unfair Prosecution

The court retains significant responsibility to guard against misuse of confessional evidence, including the risk that a confession is untrue (for reasons unrelated to how it was obtained), given under duress, misunderstood, or manipulated. This is particularly pronounced in cases involving vulnerable suspects, language barriers, or inadequate legal representation.

The judge (or magistrates) must evaluate the context, circumstances, and procedural compliance in each case.

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, whatever the circumstances and recipient.
• Confession evidence is admissible as an exception to the hearsay rule, but only if obtained and presented in compliance with statutory and fairness safeguards.
• Section 76 PACE 1984 requires mandatory exclusion if a confession was, or may have been, obtained by oppression or in circumstances likely to render a confession unreliable, unless the prosecution proves otherwise beyond reasonable doubt.
• Oppression includes both physical violence and psychological coercion.
• Unreliability reflects not just actual unreliability, but the likelihood of unreliability given what was said or done, considering the circumstances.
• The court will exclude a confession under s.76 if the mandatory test is satisfied, even if the confession is true.
• Section 78 PACE 1984 gives the court discretion to exclude evidence, including confessions, if admission would have an adverse effect on trial fairness, even in the absence of oppression or unreliability.
• The burden and standard of proof for s.76 applications lies with the prosecution (beyond reasonable doubt), while for s.78 discretionary exclusion, the defence bears the burden on the balance of probabilities.
• Exclusion of a confession does not always taint evidence derived from it, unless that derived evidence is itself rendered inadmissible by unfairness or violation of standards.
• Confessions made to private citizens, co-defendants, or those not in authority are treated by the same admissibility rules.
• Vulnerability, denial of legal advice, failure to caution, or breach of the appropriate adult procedure significantly heighten the risk of exclusion for oppression, unreliability, or unfairness.

Key Terms and Concepts

• confession
• oppression
• unreliability
• discretionary exclusion
• burden and standard of proof
• voir dire