Confessions and Inferences

Question	Answer
R v Condron and Condron	Heroin addicts, solicitor advised no comment interview. Judge read s.34 direction. On appeal, could only draw inferences as long as pros has established satisfactory case first.
Condron v UK	EcrHR- felt judge didn't reflect proper balance as far as art6 concerned. should direct that inference only if satisfied that D's silence could only be sensibly attributed to having no anser or one that wouldn't stand XX.
R v Argent	s.34, in the circumstances shouldn't be restrictive, relevant things- age, experience, mental health, sobrierty, legal advice
JSB Direction s.34	had no answer that he believed would stand up to scrutiny, has since invented account, has since tailored account to fit pros case.
s.38(3) on s.34	Conviction cannot be based solely on inference from silence, pF case for pros must be found to exist first.
Condron V UK	Silence on the advice of solicitor, not an automatically reasonable stance, must be given appropriate weight.
R v Beckles	Lord Woolfe CJ- jury must consider if D genuinely relied, reasonable to do so, true explanation for silence, reasonableness in not mentioning must be determined by jury, unreasonable= inferences
R v Argent	Jury not concerned with correctness of advice but the reasonableness of D's conduct. One circumstance is the advice.
R v Howell (Jeffery John)	must be soundly based objective reason for silence, if solicitor advising client, if have good defence best to mention it before trial to avoid a s..34 inference
R v Petkar - Rix LJ	s.34 summarised direction- facts relied on ID'd, inferences which may be drawn, shouldn't convict wholly on this, only if fair and proper, guilt inference if only sensible reason, where pros case so strong calls for answer, evidence not able to draw inferences from
JSB 2004 Specimen Direction s.34	If D says didn't mention legal advice, if accept this, it's a consideration but doesn't stop conclusion from silence, person given advice can accept/ reject it. D warned failure to mention may harm defence.
Condron v UK, s.34 and art 6	as long as appropriate safe guards, compatible
Murray v UK	while right to silence/ against self incrimination at heart of fair trial, not absolute, providing not sole reason to convict, can draw inferences.
Beckles v UK	in situations where clearly calls for explanation from D, silence may be taken into account providing safeguards- direction about s.34 and judges decisions, would breach to convict on inference alone
R v B - reform of s.34?	cofA described provision as notorious minefield.
Prof Birch on s.34	inferences will carry little weight compared to other corroborating evidence, complex direction, cost-benefit analysis of whether to direct on silence. needs repealing?
Lucas Direction	Where shown that D's lied, to watn juries against jumping to conclusion of guilt
R v Lucas	Lie must be deliberate relate to material issue, motive must be guilt/ fear of truth. must be reminded conceal truth for other reasons. statement must be shown clearly to be a lie by other evidence.
R v Burgess	Lucas and s.34? 4 circumstances where overlap: 1- Def relates to alibi, 2- consider desirable to look for support of evidence. 3- where pros seek to rely on something said in court in relation to lies as evidence of guilt, and 4- fear jury will do 3.
R v Stanislas	D may have lied and failed to mention- s.34 direction, may be necessary to give both, or tailor, special modified direction to meet the case.
R v Rana	Some cases may require both, however usually better to select the one that better meets the need and modify it to meet the circumstances
R v Hacket	usually unhelpful and confusing to give s.34 and Lucas
Fruits of the poisonous tree	S.76(4),(5) if during inadmissible confession, D speaks certain way, can admit edited section to show this. prosecution can't prove those facts were discovered as a result of an excluded confession.
s.34 CJ and Public order act.	Failure to mention something when questioned that you later rely on in court.
article 6 ECHR Right against self-incrimination	Not an absolute right, inferences may now sometimes be drawn
s.34(1) Trigger conditions	where evidence given that D failed to mention any fact relied on in his defence during questioning under caution before/ after charge, and if it's a fact reasonably could have mentioned, ss2 applies
s.34(2)	The court may draw inferences from the failure to appear proper when deciding if D is guilty
s.34(2A)	limits this, denial of access to solicitor, then can't draw inferences!
R v Bowers	s.34 can be used where D doesn't give evidence in chief, but where the barrister may try to get facts out from other witnesses, through cross-examination.
R v Webber	CofA said s.34 broad application, covers any alleged fact in issue, not juts those proven. Applicable where D suggests positive fact of any exculpatory explanation
Judicial Studies Board Model Direction on s.34	Don't want jury to leap to automatic conclusion of guilt as would be unfair.
s.82.3	retention of judge's common law power to exclude if prejudicial effect outweighs probative value.
R v Sang	conspiracy to forge banknotes. Judge has power to exclude confessions made by unfair/ improper means OR when prejudicial outweighs probative value
R v Sat-Bhambra	Importing heroin, diabetic, issue at to whether suffering hypoglycaemia. Here warning jury, CofA felt appropriate.
S.76 A PACE	enables D to adduce confessions of co-D's where pros have chosen not to adduce it,
s.76A Rationale	fairness against co-ds who can't challenge. D1 may have motive to incriminate D2.
R v Turner and third parties	confessions of third parties pf inadmissible as HS.
CJA 2003	confessions of third parties may be admitted under the interest of just safety valve.
Inferences From Silence Rationale	designed to encourage D to raise defence at earliest opportunity if have a good one, prevent ambush at trial, pros can investigate
Pace Code C	Pre trial Reforms with regards to confessions and inferences.
Judges Rules	Prior to PACE, rules of practice for guidance for police, if rules breached judge could exclude in interests of fair trial.
s.82(1) PACE	confession includes any statement wholly or partly adverse to the person who made it, includes mixed statemetns.
R v Sat-Bhambra-	Lord Lane- wholly exculpatory statement not a confession even if later turns out to be a lie.
R v Hasan	Lord Steyn- purely exculpatory statement not a confession, provisions of s.76 don't apply but s.78 do.
s.76(1) PACE.	confessions are pF admissible for the pros, only as evidence against the maker.
s.76(2) PACE	oppression or behaviour likely to render the confession unreliable may lead to it being excluded, unless pros can prove beyond reasonable doubt in voire dire it wasn't achieved like that.
R v Dhorajiwala	Had been told that prison was the worst case unless confessed, on appeal judge wrong not to hold voire dire.
Burden of Proof	If s.76(2) a or b triggered, rebutable presumption of exclusion, on pros to prove beyond reasonable doubt wasn't obtained in accordance with these.
s.76 (2)	can only be used before evidence admitted,
s.76(2)(a)	exclusion of confession pursuant to oppression.
s.76(8)	statutory definition of oprression includes torture, inhumane or degrading treatment, and use or threat of violence
R v FUlling	Lord Lane supplementary definition of oppression- likely to involve some impropriety on behalf of the police
R v Mushtaq	Lord Hutton- rationale behind s.76(2)- weed out unreliable confessions and protect D's rights
R v Heaton	Police raised voices at D, held not oppression, appreciate police will get frustrated.
R v Paris, Abdullahi, Miller	Cardiff 3, murder of prostitute. Miller bullied and hectored by police, solicitor did nothing. CofA held oppression, appeal allowed.
R v Davison	detained past lawful point and held imcommunicado, no solicitor. Unlawful detention, police exercising authority in wrongful manner, confession excluded.
S.76(2) (b)	exclusion pursuant to behaviour conducive to unreliable confessions, caused by behaviour of persons other than S.
R v Goldenberg	D heroin addict, requested interview and confessed. argued only did so on hope of early release. held, not excluded, nothing else influenced him.
R v Wahab Judge LJ	D arrested heroin supply. Improper pressure regarding father having heart attack, solicitor told him no guarantees if made admissions. COfA advice given by solicitor not usually enough to exclude evidence.
R v Delaney	D agred 17 and educationally subnormal, IQ of 80. courts apply objective approach when determining police interviewing S with impaired mental characteristics and unreliability- mental characteristics as they actually existed not as Police believed them to be.
R v Everett	Impropriety not a prerequisite to exclusion under s.76(2)(b). D mental age 8, police unaware of true nature of condition, confessions obtained without protection of PACe provision for disabilities. On appeal, wrongly obtained, even though honest ignorance.
Aim of s.76(2)(b)	aim to screen out unreliable confessions, vindicate D's rights, and protect vulnerable. Test- whether D acted in manner likely to produce unreliable confession in same circumstances.
R v Bow Street Magistrates ex P Proulx	Extradition proceedings, confession made to undercover officers. Mance LJ- test is not whether actual confession inaccurate, rather whether circumstances such as it is likely to have been unreliable.
R v Barry Trussler [1988]-	Drug addict who made lengthy confessions following general chat in cell with police. Excluded at trial, unreliability. denial of sleep may have been oppression also?
R v McGovern	19 year old 6 months pregnant, first confession no solicitor no record of interview, confessed to mruder, 2nd interview with solicitor confessed again. CofA 1st excluded, tainted 2nd so also excluded.
R v Roberts	confession by employee to employer regarding theft. Told if admitted it wouldn't take it further. held unreliable
r v Mushtaq	HoL confession admitted following unsuccessful ap for exclusion under s.76. If not excluded can raise same matters as did in voire dire in front of jury. if jury agrees confession will be disregarded.
s.78 PACE	disclusionary exclusion of confessions where they would have an adverse effect on the fairness of proceedings,
R v Alladice	Denied access to solicitor, breach of s.58 Pace. if police have breached code in bad faith, likely to lead to exclusion under s.78 PACE
R v Walsh	additional breaches of s.58, no contemporaneous note made in interview at time. court- interest of justice test must be remembered.
Code G-	failure to caution, minor deviations do not amount to a breach providing sense of caution preserved.
R v Shah	Importation case, duty to caution arises where reasonable grounds to suspect offence committed by D.
R v Noden	statement made in ambulance without caution. Ruled inadmissable as wasn't a unspontaneous, unsolicited remark. reasonable belief, should have cautioned.
R v Alladice	Breached of PACE won't automatically result in exclusion of evidence if would have no adverse effect on fairness of proceedings.
R v Keenan	no contemperaneous record where D alleged to make confession. CofA made clear not every breach would mean evidence excluded, must be substantial and make proceedings unfair if admitted.
Art 6(3)	charged with criminal offencce, rights to avail self with legal assistance
Murray v UK	IRA suspect held incommunicado. guarantees of art 6 extend to an accused having right to assitance and support by a lawyer throughout the proceeding
Salduz v Turkey	arrested on suspicion of belonging to proscribed organisation, interogated without lawyere. breached art 6, D minor at time which carried weight.
r v Dunford	D's confession admissable despite wrongful denial of legal advice, CofA dismissed appeal.
HM advocate v P	reliance on fruits of questioning, rape trial. still possible for D to have fair trial, didn't have to exclude as could have just called friend to give evidence

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Confessions and Inferences

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