During any criminal investigation, the police have to obtain evidence in a lawful way as any evidence obtained unlawfully (ie, in breach of the Police and Criminal Evidence Act 1984 (PACE) and the related Codes of Practice) may be held to be inadmissible in court. Unlawfully or unfairly obtained evidence can, therefore, be described as any prosecution evidence which has been obtained in a questionable way and can be challenged in court. The three main situations that can result in evidence being obtained unlawfully are as follows:
Unlawfully or unfairly obtained evidence can … be described as any prosecution evidence which has been obtained in a questionable way
A confession is defined as: ‘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 s82(1)) . Therefore, to be admissible against a defendant, a confession does not have to be made to a person in authority (see R v Dunlop (reported as R v D) [2006] EWCA Crim 1354 and R v Stone [2001] EWCA Crim 297; (2001) Crim LR 465.
A confession can be challenged where the admission has been obtained by oppression of the defendant in breach of PACE s76. Oppression is defined as including torture, inhuman or degrading treatment, or the use of threats or violence. Section 76(2)( a) of PACE places the trial court under a legal duty to exclude any statements which have been obtained by oppression.
In the case of R v Fulling [1987] QB 426, a woman confessed to obtaining property by deception, during a police interview, after being told by an interviewer that her lover had been having an affair. She argued, on appeal, that her confession had been obtained by oppression and should not have been admitted at her trial. The Court of Appeal used the Oxford English Dictionary to find the meaning of the word ‘oppression’ , ie, ‘exercise of authority or power in a burdensome, harsh, or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc; the imposition of unreasonable or unjust burdens’ , and concluded that there had been no oppression in this case. It was established, though, that for conduct to amount to oppression required deliberate misconduct by the police.
However, in R v Paris; R v Abdullahi; R v Miller (1993) 97 Cr App R 99, the court held that there had been oppression in a case where the appellants were convicted of murdering a prostitute. The police interviewed Miller over five days for some 13 hours, and while he denied both participation and presence at the murder scene over 300 times, eventually he admitted that he had stabbed the victim. Miller’s appeal, on the ground that the interviews were oppressive, was upheld by the Court of Appeal. The court held that his confession was inadmissible under PACE s76(2)( a).
Where the confession has been obtained in circumstances that render it unreliable (which can include anything said or done to the accused) it may be challenged under PACE s76(2)( b). In the case of R v Delaney (1988) 86 Cr App R 18, the defendant, who was a vulnerable suspect because he had special needs, was charged with the indecent assault of a three-year-old girl on the basis of a confession.
However, the failure to secure legal representation for the defendant led to his confession being ruled unreliable under PACE s76(2)( b).
In the case of R v Howden-Simpson [1991] Crim LR 49, a choirmaster was charged with the theft of money received at weddings, which was intended to be given to the choristers. The police said that if he confessed they would proceed on just two specimen counts; however, if he did not confess they would interview each chorister individually and make a separate charge for each one. The choirmaster’s subsequent confession was held by the Court of Appeal to have been an inducement to confess under PACE s76(2)( b), which rendered it unreliable and, therefore, inadmissible.
Incriminating confessions that have been obtained as a result of unfair conduct by the police, including being in breach of s78 PACE, may also be challenged. Such incriminating confessions might be obtained as a result of, for example, a failure to secure access to a solicitor; a failure to provide safeguards to protect a vulnerable suspect; or deceiving a suspect into making a confession.
R v Mason [1988] 1 WLR 139 is an example of a case where the defendant was deceived by the police into believing that his fingerprints had been found, linking him to the petrol bombing of a car. As a result, he confessed to the crime, which led to his conviction for arson. The conviction was quashed later, as the manner in which the confession had been obtained had had an adverse effect on the fairness of the proceedings.
In the case of R v Aspinall [1999] Crim LR 741, the Court of Appeal ruled that the defendant, who suffered from schizophrenia, was a vulnerable person and, therefore, should have had an appropriate adult present when being interviewed by police. This rendered the confession unfair and in breach of PACE s78.
Section 78 PACE empowers the court to exclude any prosecution evidence where the manner in which it was obtained would have an adverse effect on the fairness of proceedings. There is an obvious overlap between the reasons for inadmissibility under PACE s72(2)( b) and PACE s78.
Under PACE s82(3), there is also general discretion for evidence to be excluded which will prejudice a defendant receiving a fair trial, ie, where its probative value is exceeded by the prejudicial effect of the evidence, although in practice its use is rare as indicated by the lack of case-law .
When considering the admissability of evidence, a court must consider whether the provisions of the convention are being upheld, particularly article 6 (the right to a fair trial).
In the case of Charles v Crown Prosecution Service [2009] EWHC 3521 (Admin), the defendant, after failing a breathalyser test at the police station, was charged with being in charge of a vehicle while under the influence of alcohol contrary to Road Traÿc Act 1988 s5(1)( a).
However, the police decided to reinterview the defendant about whether he had driven the vehicle, which he confirmed (although he was unaware that he was being investigated for any other offence). He was charged with the more serious offence of driving while under the influence of alcohol. This was despite the fact that, usually, a detainee may not be interviewed about an offence with which they have already been charged. The evidence obtained at the second interview was, therefore, excluded under both PACE s76 and PACE s78 as being inadmissible as it would lead to an unfair trial.
The admissibility of evidence may be considered at a preliminary hearing; however, where the admissibility of evidence is challenged during a trial in the Crown Court, the legal arguments will be considered in the absence of the jury, which will be dismissed by the judge. This is known as a voir dire or a ‘trial within a trial’ .