Chapter 3 Key facts checklists
Confessions
● A defendant may be convicted on the evidence of a confession alone, although in practice this is not common (see criticism by Pattenden (1991)).
● The definition of a confession is contained in s82(1) Police and Criminal Evidence Act 1984 (PACE).
● A confession proffered by the prosecution may be excluded by the rule under s76(2)(a) and (b) PACE and one proffered by a co-defendant may be excluded under s76A(2)(a) and (b).
● A confession that has been proffered by the prosecution may be excluded by operation of statutory discretion under s78 PACE.
● Section 82(3) PACE preserves the common law discretion to exclude evidence.
● PACE Codes of Practice C, E, and F (2018 Revisions) govern the procedure for police interrogation of suspects.
Pre-trial silence
● A suspect’s failure to give an explanation when questioned by a constable under caution may allow the jury at trial to draw an inference of guilt under ss34, 36, and 37 Criminal Justice and Public Order Act 1994 (CJPOA).
● Sections 34, 36, and 37 CJPOA only apply if the suspect is questioned at an authorised place of detention and has been allowed an opportunity to consult a solicitor prior to being questioned, charged, or officially informed he might be prosecuted.
● The fact that the suspect relied on legal advice to remain silent does not of itself prevent adverse inferences being drawn at trial.
● Article 6 European Convention on Human Rights (ECHR) does not specifically include the right to silence or the privilege against self-incrimination. These have been recognised as international standards which lie at the heart of the notion of fair procedures but not as absolutes.
● Inferences of guilt permissible under ss34, 36, and 37 are not sufficient without additional evidence to establish a case to answer or a finding of guilt.
● If the suspect and interrogator are on ‘even terms’, silence on the part of the former may amount to an admissible confession under the common law.