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Confession S78 Pace Essay Evidence law.

Introduction.
The Police and Criminal Evidence Act 1984 (PACE) have Brought about quite an
extensive reform on the overall framework of the law relating to the
investigation of a Crime .For the Purpose of this Essay , The Pace regulation
and certain sections in particular will be critically assessed in depth in relation
to Confession Evidence Primarily . The term “Confession” Is defined under
S82(1) of PACE, Confession Includes any statement wholly or Partly adverse to
the person who made it, whether made to a Person in authority or not and
whether by words or otherwise “
The Admissibility of this form of evidence in a criminal proceeding is governed
by Section 76 and Section 78 of PACE these regulations generally have brought
extensive changes to the law on confession and its admissibility on trial.
Body (Common law Position before PACE 1984).
One of the Earliest cases that came about with regards to Confession during
the Common law period is the case of R v Warickshall 1783, The facts of this
case involve whereby stolen goods were found under the bed of the accused
based on relying on the inadmissible confession made by the accused. The
court rejected the view of the accused requesting that the evidence regarding
the stolen property should be excluded since it was obtained from relying on
inadmissible confession evidence. The court went ahead and held that the
evidence could be admitted even if it was obtained by Oppression.
Crompton Justice in the case of R v Leatham 1861 has went ahead and stated
that during Common law period, the position was that “Even if you stole the
evidence, the evidence would still be admissible as evidence in a case “.
Whereas, Lord Diplock in R v Kuruma 1954 whereby he went ahead and stated
that “Judges have no discretion to exclude evidence on the ground that it was
obtained illegally “.
Diving Further into the Crux of this issue, In the case of Jeffrey vs Black 1978
whereby the grave position before Pace can be noticed. The Police searched
the defendant’s flat illegally without a warrant and found cannabis. The
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decision in this case was that the illegally obtained evidence could be
admitted. Thus, the rationale behind this is that if “The Evidence was reliable
and relevant then the court is not particularly concerned of where it came
from or how it was obtained”
However, If Similar case with Similar facts arises after the Implementation of
Pace, then the case would have different outcome if the court finds that by
admissing the evidence it is likely to have an adverse effect on the fairness of
proceeding.
Another leading case which demonstrates the Common law Position is with
regards to the case of R v Sang thus this case can be seen to demonstrate the
difficult circumstance the trial judge faced with regards to issues of
admissibility of evidence per se.
The Facts of this case involves Police Entrapment In which the Police
authorities played a role in setting up an offence with the supply of forged
banknotes to trap the defendant. The trial judge in this case went ahead and
discussed on the discretion in courts to exclude evidence of such.
The trial judge as a result came to a conclusion that there were no statutes of
any sort to exclude the evidence on the ground that it was obtained unfairly.
Though, there were only three very narrow common law exceptions to allow
them to exclude evidence which are:
A. When Confessions are improperly obtained.
B. When Confessions are obtained in situations analogous the Confession.
C. When the Prejudicial Effect of the Evidence outweighs its Probative value
(R v Payne 1963)
However, The Position now with the Introduction of PACE is that it grants
judges a broader discretion and better control towards evidence which are
unfairly or improperly obtained.
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S76 AND S78 OF PACE 1984

Thus, the two crucial sections that was introduced with regards to confession
evidence and its admissibility is S76 and S78 respectively under PACE 1984
regulation. For the purposes of this essay, S78’s mechanics would be assessed
in relation to its application.
Section 76, Governs the admissibility of Confession evidence. Whereas, S78
aims to protect any suspect who makes a confession whilst in the police
custody.
Professor Richard Stone has therefore gone ahead and identified three main
contexts to which S78 generally applies to: These are
A. Bad faith on Part of the Police
B. Impropriety often in the form of breaches of PACE 1984 or its code of
Practice.
C. The Effect of such impropriety on the outcome of the case.
Thus, with regards to Professor Richard Stone’s finding, in order to better
understand the nature of this act and its effect in application. It is therefore
crucial to consider relevant case laws that have come about in this area
respectively.
The rationale and the Primary Purpose of this act and section is reflected in
the case of R v Quinn which stated that “The function of the judge is to
protect the fairness of proceedings ….Thus Proceedings may become unfair
if , For example one side is allowed to adduce relevant evidence which for
one reason or another side cannot challenge or meet”.
In R V Mason. The facts of this case involve whereby the defendant was
arrested on suspicion of committing arson. During Interrogation the police
placed unfounded evidence on to him as a tactic to make him confess to which
the defendant later did. The Court of Appeal later held that Defendant had
been lied to during interrogation and as the conviction is based solely on the
confession evidence which was improperly obtained thus the conviction was
quashed.
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In the other hand, In the case of R v Khan. In this case the courts are faced with
a dilemma with regards admissing a piece of evidence as well as to balance the
decision with the “European Convention of Human rights “respectively.
The facts briefly involve whereby the Police installed electronic listening device
without the defendant’s knowledge. Khan argued by stating that statements
exchanged in Private Conversations should not be admissible as evidence as it
Is a clear breach of Article 8 of the ECHR.
However, The appeal on the grounds was rejected by Lord Nolan whereby he
stated that “It would be a strange reflection on our law if a man who has
admitted his participation in the illegal importation of a large quantity of
heroin should have his conviction set aside on the grounds that his privacy
has been invaded” .
Khan appealed this decision to the European court of Justice in Strasbourg.
The court however find no breach of Article 6 not 8 thus the conviction was
upheld.
Apart from that, another area which S78 regulates is with regards to the code
of Practice of the Police with regards to obtaining confessions.
As in the case of R v Samuel whereby the facts involved whereby the D’s access
to solicitor was denied by the authorities thus as a consequence the confession
was held not to be admissible as the right to solicitor was denied even though
it was a recognised right under S58 PACE 1984 .
However , The court In this case went ahead and held that “However it is
important to note that generally with regards to codes of Practice , In certain
cases considering the facts even if access to solicitor is refused the confession
may not be excluded thus the judge will consider in the case if the breach “
Significant and Substantial “ to reflect adversely on proceedings .
Contrasting, To R v Walsh 1989 similarly here the accused was refused access
to solicitor. The Appeal court held that this was in breach of S58 OF PACE and
Code C thus the evidence must have been excluded.
Where else, In R v Loosely, Similar issues regarding codes of Practice and
confessions can be noticed to have aroused here as well.
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However, Despite the various Improvements by the Act that have been
brought about towards the management of evidence with regards to
confession. There still seems to be certain drawbacks that has been raised by
notable individuals in this sector for instance:
Lord Justice Watkins in the case of R v Masons Whereby he stated that S78 did
no more than to restate which judges had at common law thus this was later
affirmed by Sybil Sharp “Judicial Discretion and Criminal Investigation “
whereby here the author went ahead and stated that the unstructured
wording of S78 leaves a lacuna .
A contrasting view was reached by Ormerod and Birch respectively in the
article titled “The Evolution of Discretionary Exclusionary Evidence “2000 .
whereby here they beg to differ on the views reached earlier stating that
“Exclusionary discretion has several advantages such as promoting reliability of
evidence. Thus, all that one is asking is that the Discretion will be guided.
However, this has not been answered by the courts. But Rather, Michael
Doherty in “Judicial Discretion Victimising the Villains 1999” and Nash and
Choo in “What’s the matter with S78 1999” went ahead and introduced
certain guidelines to be considered when S78 is brought into use.

Michael Doherty’s Guidelines.

 Reliability:

The First Guideline, Is with regards to the reliability of the evidence. What this
guideline states are that Assuming that the Police conduct was illegal. But the
Illegality did not impact the reliability of the evidence then the evidence should
be admitted, where else if the Method was illegal and it affects the reliability
the reliability of evidence then the evidence should be excluded (No more
discretion to admit). It, can be reflected in R v Cooke and R v Stewart 1995
respectively.
 Bad Faith.
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The Second Guideline, Is with regards to Bad faith. In other words, a breach of
Code C by the authorities. Thus, Police have done a misconduct when there is a
breach of Code C is done.
According to “Talha Abdul Rahman in Fruits of a Poisoned tree
2011“suggested that bad faith is a method of discouraging misconduct (Code
C) during investigation thus the rationale being to deter police from doing
wrong things thus when it is used the Particular piece of evidence would be
excluded.
In these circumstances, it can be noticed that the court will rather act as a
“Disciplinarian “. Though these acts have been criticized for instance Lord
Justice Watkins in the case of R v Masons 1981 stated that the courts duty “is
in no way to punish the police for failure to follow codes of practice”.
However, In Motto vs Wolver Hampton 1987 whereby here the evidence was
excluded under S78 misconduct.

 Protective Principle

The Third Guideline known as the Protective Principle is with regards to the
rights laid down under ECHR. Thus, if the inclusion of the evidence infringes a
right under ECHR then the evidence should be excluded.
Thus, in application of S78 this guideline should be effectively considered to
ensure that the right of accused is not breached in the process of admitting
evidence and achieving justice as a whole.
This, was later affirmed by Andrew Ashworth in “Excluding Evidence as
Protecting Rights 1977“. However, He went ahead and stated that treatment
of rights by the courts have rather been “Pathetic “.

The Overall Effectiveness of PACE 1984. (Briefly)

With regards to the Extensive Discussion above. A rationale can be drawn with
regards to the overall effectiveness of the PACE regulation. It can be stated
that the legislation has been largely successful and it has been stated to be
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“One of the most significant developments in modern Policing” as stated by

Coliandis-G in his article on PACE 1984.
Although, there have been equal criticisms that have arisen in this area. One of
it being whereby the Justice system was branded as being “Institutionally racist
“previously as provided in the “Report of an enquiry by Sir William
McPherson of Cluny “. However, now it is safe to say that the overall Public
Opinion towards the system has improved.
One of the outlining reasons of this being that the authorities have effectively
embraced the PACE 1984 (Zander). Thus, resulting from gradual reinstatement
of Public Confidence.
Apart from that, With regards to this juncture of the law. Generally, there have
also been criticisms raised in relation to the Excessive powers conferred to the
Judiciary as reflected by Birch D in “Interpreting the new concept of Hearsay
2010 and Ormerod D in Evidence “Judge admitting defendants’ Previous
conviction”. However, Since the introduction of PACE 1984 and its relevant
safeguards to control excessive powers have been stated to be rather quite
successful in dealing with this issue as a result it has inspired the expansion of
the admissibility requirements of forms of evidence such as Hearsay evidence
and Bad character evidence. Previously, both of the evidence was regarded to
be Inadmissible but now they may be admitted under certain gateways
provided under S78 of Pace 1984.

The Police and Criminal Evidence Act 1984 (PACE) reformed the legislation
relating to criminal investigations. In this essay, the Pace rule and specific
provisions will be analysed in respect to confession evidence. Mostly.
"Confession" is defined under S82(1) of PACE as "any statement wholly or
partly adverse to the person who made it, whether made to a Person in
authority or not and whether by words or otherwise." The admissibility of this
form of evidence in a criminal proceeding is governed by Sections 76 and 78 of
PACE. These regulations have brought extensive changes to the law on
confession and its admissibility on trial.
Main (Common law Position before PACE 1984).

In R v Warickshall 1783, stolen goods were located under the accused's bed
based on his inadmissible confession. The court denied the accused's motion
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to remove stolen property evidence based on inadmissible confessions. The

court ruled that evidence collected by oppression might be entered.
In R v Leatham 1861, Crompton Justice declared that under the Common Law
period, stolen evidence was acceptable.
In R v Kuruma 1954, Lord Diplock said, "Judges have no discretion to exclude
fraudulently obtained evidence."
In Jeffrey vs Black 1978, Pace's burial stance is seen. Police improperly searched
the defendant's apartment and found marijuana. The
Illegally obtained evidence was admitted in this case. If "the evidence was
reliable and significant, then the court doesn't care where it came from or how
it was gathered"
If a similar case with similar facts arises after the implementation of Pace, the
decision may be different if the court deems that admitting the evidence will
affect the fairness of the procedure.
Another Common law case R v Sang demonstrates the difficulty the trial judge
had with admissibility of evidence per se.
Case involves police entrapment Police set up a crime with fake cash to capture
the defendant. The trial judge in this instance debated excluding such evidence.
The trial judge concluded there were no statutes to exclude unfairly obtained
evidence.
Only three common law exceptions allowed them to exclude evidence:
A. Improper confessions.B. In analogous scenarios. C. When prejudicial evidence
outweighs probative value (R v Payne 1963)
PACE gives judges more authority and control over unjustly or unlawfully
obtained evidence.
PACE 1984 S76 AND S78
S76 and S78 of PACE 1984 regulate confession evidence and admissibility. This
essay will evaluate S78's mechanics and application.
Section 76 governs confession admissibility. S78 protects suspects who confess
under police custody.
Professor Richard Stone has identified three main S78 contexts: It's Police bad
faith
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B. PACE 1984 or its code of practise violations.

C. Effect of impropriety on case outcome.

To better appreciate this act's nature and use, consider Professor Richard
Stone's findings. Consider relevant case laws in this field.

R v Quinn explains the reason and primary purpose of this act and section:
"The judge's job is to preserve the fairness of proceedings."

Thus, proceedings may be unfair if, for example, one side is allowed to present
crucial evidence that the other side cannot contest or refute.

Mason. The defendant was arrested for arson. During interrogation,

authorities used bogus evidence to get the defendant to confess. The Court of
Appeal later ruled that the defendant was lied to during interrogation, and as
the conviction was founded primarily on fraudulently obtained confession
evidence, it was vacated.
R v Khan, though. In this case, the courts have a difficulty between admitting
evidence and balancing the decision with the "European Convention of Human
Rights."

Police inserted a listening device without the defendant's knowledge. Khan

contended that private conversations shouldn't be accepted as evidence since
it violates Article 8 of the ECHR.

Lord Nolan rejected the appeal, stating, "It would be an odd reflection on our
law if a man who admitted his role in the illegal importation of a substantial
quantity of heroin should have his conviction set aside on the grounds that his
privacy was invaded"
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Khan appealed to the Strasbourg court. The court found no violation of Articles
6 or 8, upholding the conviction.

S78 also regulates the police's code of practise for getting confessions.

As in R v Samuel, the D's access to a lawyer was prohibited by the police, hence
the confession was ruled inadmissible because the right to a lawyer was
refused under S58 PACE 1984.

Court In this case, the judge ruled that even if access to a lawyer is denied, a
confession may not be dismissed if the violation was "significant and
substantial"

R v Walsh 1989 similarly denied accused a lawyer. The appeals court ruled that
this violated S58 of PACE and Code C and excluded the evidence.

where R v Loosely raises similar questions about rules of practise and

confessions.

Despite the Act's improvements to confession evidence management,. There

are still problems, such as:

R v Masons, Lord Justice Watkins Sybil Sharp "Judicial Discretion and Criminal
Investigation" argued that S78's unstructured phrasing leaves a gap.

In 2000, Ormerod and Birch wrote "The Evolution of Discretionary Exclusionary

Evidence." They disagree with past conclusions, saying "Exclusionary discretion
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promotes evidence dependability." All one asks is to guide Discretion.

The courts haven't decided. In "Judicial Discretion Victimizing the Villains

1999," Michael Doherty and Nash and Choo provided rules for using S78.

Doherty's Rules.

• Reliability:

First guideline: evidence reliability. This guideline says to assume police

misconduct. But if the illegality did not influence the reliability of the evidence,
it should be permitted; if it did, the evidence should be excluded (No more
discretion to admit). R v Cooke and R v Stewart 1995 reflect this.
• Untruthful.
Second, bad faith. The authorities broke Code C. When Code C is broken, police
commit misconduct.

According to "Fruits of a Poisoned Tree 2011" by Talha Abdul Rahman, ill faith
discourages wrongdoing (Code).

C) During an investigation, so excluding evidence to dissuade cops from doing

wrong.

In such cases, the court acts as a "Disciplinarian." Lord Justice Watkins in R v

Masons 1981 said the court's responsibility "is in no way to punish the police
for failing to observe norms of practise."

Motto versus Wolver Hampton 1987 disallowed evidence on S78 misconduct.

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• Safeguards
The Protective Principle relates to ECHR rights. If the evidence violates ECHR, it
should be excluded.
In applying S78, this rule should be examined to guarantee that the accused's
rights are not violated when admitting evidence and obtaining justice.
Andrew Ashworth confirmed this in "Excluding Evidence as Protecting Rights
1977." He said courts' treatment of rights was "Pathetic."

PACE's 1984 effectiveness (Briefly)

Regarding the above Discussion. PACE's effectiveness can be justified. The law
has been mainly successful.
"One of the most significant developments in modern policing"
Coliandis-G, PACE 1984.
However, this has also drawn criticism. The Justice system was called
"Institutionally racist" in Sir William McPherson of Cluny's report. Overall public
opinion of the system has improved.

The authorities have effectively adopted the PACE 1984. (Zander). Thus,
gradual public confidence restoration.

Regarding this legal juncture. Birch D in "Interpreting the new notion of

Hearsay 2010" and Ormerod D in Evidence "Judge admitting defendants'
Previous conviction" criticise the Judiciary's excessive powers. Since the
adoption of PACE 1984 and its safeguards to restrict excessive powers, the
admissibility of hearsay and bad character evidence has been expanded. Both
of the previously inadmissible evidence may now be allowed under S78 of Pace
1984.