The House of Lords reversed the Court of Appeal. To fulfil the definition of an out of court confession, the statement must be wholly or partly adverse to the maker at the time it was made so s76(2)(b) did not apply. Lord Steyn stated that ss76, 78, and 82(1) ‘are designed to provide in a coherent and comprehensive way for the just disposal of all decisions about statements made by accused persons to the police’.

S was spotted running away from the site of a burglary. He admitted being near the scene of the crime but gave an exculpatory reason to the police for this.

His statement was ‘mixed’, ie both inculpatory and exculpatory, and was admissible as a whole as evidence going to the truth of its contents.

The appellant had been convicted in 2008 of terrorism offences arising from the 2005 London bombings. His initial interview with police was as a witness and he was not cautioned or granted access to a lawyer. After a while, the interrogating police decided there were grounds to arrest him as a suspect, but a senior police officer instructed them to proceed without a caution or offers of access to legal advice. This interview generated a witness statement which was evidence at trial. A’s appeal on grounds of s76 and 78 PACE failed. In 2016 the Grand Chamber held that there had been a breach of Art 6 in A’s case in that there was no very compelling reason for departing from PACE procedures and that in any case considering the relevant factors the overall fairness of his trial was irretrievably prejudiced. As a result the CCRC referred the case to the Court of Appeal.

The Court of Appeal rejected the appeal. The verdict was not unsafe, and the first interview had produced valuable real evidence. This marked a departure from the rights based approach in Cadder v HM Advocate (2006). As Choo (2021, p100) commented in relation to Ibrahim v UK (2017) ‘Such judicial willingness to sanction the consideration of all supposedly relevant factors, in preference to adopting a more robust exclusionary stance, mirrors that of the domestic courts’.

B was charged with conspiracy to steal. He was anxious to obtain bail because he had custody of his young son. In interviews held in breach of Code C para 16.8he offered to assist in return for bail. In a later recorded interview where he had not been offered legal advice, he confessed. He argued that the confession had been induced by the offer of bail. The Court of Appeal held the trial judge had erred in admitting the confession. The conviction was overturned.

The courts set out the steps which should be taken when a defendant alleges that his confession was unreliable within s76(2)(b) PACE. First, identify the thing said or done, which requires the trial judge to take into account everything said or done by the police. Second, ask whether what was said or done was likely in the circumstances to render unreliable a confession made in consequence. The test is objective, considering all the circumstances. The last step is to ask whether the prosecution have proved beyond reasonable doubt that the confession was not obtained in consequence of the thing said or done, which is a question of fact to be approached in a common sense way.

F confessed after being told by police that her lover’s mistress was in the next cell. She claimed her distress had been caused by police oppression which led to her confession. The Court of Appeal rejected her submission.

Oppression in s76(2)(a) PACE must be given its ordinary dictionary meaning, which connotes ‘detestable wickedness’. Ordinarily, oppression would entail impropriety on the part of the interrogator. Contrast with R v Paris; R v Abdullahi; R v Miller (1994), where bullying questioning, even with a solicitor present, was held to amount to oppression and the confession should be excluded.

G, who was a heroin addict, gave admissions to police about his supplier. At trial he argued that he had confessed to get more drugs. The trial judge had correctly admitted the confession.

The test set out in s76(2)(b) required that things said or done were extraneous to the maker of the confession.

The police, acting without evidence of bad faith, had made H aware of her lover’s confession to a murder. H, who was psychopathic and of low intelligence subsequently also confessed. H’s confession should have been excluded.

There is no need for police impropriety for s76(2)(b) to apply.

K was arrested and questioned about an incident in which an elderly woman had had her bag snatched. She had fallen and subsequently died from her injuries. K was not initially told about her death and did not seek legal advice. He wanted to retract his confession admitting the theft. His convictions for robbery and manslaughter were overturned.

Code C para 10.3requires that the person who is arrested must be informed at the time or as soon as reasonably practicable that they are under arrest and the grounds for their arrest. See also Art 5(2) ECHR, which provides that ‘Everyone who is arrested shall be informed promptly, in a language that he understands, of the reasons for his arrest and of any charge against him.’

M was suspected of involvement in an arson attack. Police pretended to both him and his solicitor that his fingerprints had been found at the scene. As a result, the solicitor advised M to respond to police questions. His subsequent confession should have been excluded because of the police deceit.

Deliberate and serious malpractice on the part of the police may lead to a confession being excluded under s78. The Court of Appeal judgment highlighted the importance of the deceit affecting the legal advice given to the suspect. However, disciplining the police was not an objective of the exclusionary discretion.

S was charged, along with others, with insider dealing. They had made adverse statements to inspectors appointed by the Trade and Industry Secretary which were admitted at trial. It was claimed that they ought to have been excluded under s76(2)(a) since it was not explained to them that they could be used in evidence at trial under the Companies Act 1985. It was held that the questioning was not oppressive since S was intelligent and sophisticated.

The particular characteristics and mental state of the accused are relevant in considering whether the confession was a result of oppression.

Breaches of the Code and statute which occurred during interview included denial of a solicitor and failure to record the interview or give the suspect a chance to check it.

Serious and significant breaches of the statute and the Code may lead to exclusion of a confession under s78 PACE in the absence of bad faith on the part of the police.

There were two other co-defendants, B and R, as well as H, to a charge of murder. The prosecution case was that B wanted to arrange the murder of her husband and H recruited R as a contract killer. At trial R’s confession was admitted.

The rule that a confession is only evidence against the person who made it (see s76(1)) does not mean that where there are co-defendants, the jury cannot use one defendant’s confession in establishing his or her guilt and use that finding of guilt in deciding the guilt of the co-defendant.

P was confronted by the mother of a woman bleeding from stab wounds. She asked P, who was holding a knife, why he had stabbed her daughter. P made no reply but when the mother tried to get hold of him, he tried to stab her. The PC held that the jury had been entitled to take into account P’s silence and his reaction as evidence of guilt.

At common law where the parties are on even terms, silence in the face of an accusation may amount to a confession. See also R v Collins (2004), which involved the evidential status of the defendant’s failure to contradict a lie told by an accomplice. The Court of Appeal held that in this instance the silence did not amount to adoption of the lie, but in principle if the parties were on ‘even terms’ an ‘important lie’ which was not contradicted may lead to the drawing of an adverse inference.

The defendant gave no comment in interviews but at trial claimed he had left the scene before the crime occurred.

The reference to ‘fact’ in s34(a) and (b) means a fact that the accused could reasonably be expected to mention in the circumstances. The judge should direct that the personal characteristics and circumstances of the accused should be taken into account.

Two drug addicts were advised by their solicitor, who considered they were suffering withdrawal symptoms, not to answer police questions. The judge did not direct the jury that they could only draw adverse inferences if they were satisfied that their silence could only sensibly be attributed to their having no explanation which would stand up to scrutiny.

Section 34did not violate Art 6 ECHR. Legal advice to remain silent under questioning did not, in itself, mean that the jury could not draw an inference of guilt, but the judge must direct the jury on how to assess the effect of this legal advice.

H manufactured illegal drugs as a by-product of his glassware company. On legal advice he failed to respond to police questions and at trial claimed he believed the drugs were for cancer research.

The judge must direct the jury to consider whether, regardless of legal advice genuinely given and genuinely accepted, an accused has remained silent not because of that advice but because they had no, or no satisfactory, explanation to give.

K was charged with indecent assault on a child. At the start of a police interview his solicitor gave a written statement and K failed to answer further questions. His evidence at trial was consistent with the content of the statement.

Adverse inferences could not be drawn when a pre-trial written statement was comprehensive and new material was not raised at trial.