Darius and Euan are arrested on suspicion of burglary. At the police station Darius asks to see a solicitor, but Superintendant Bucket refuses, saying that he believes recovery of the stolen property would be hindered if Darius is not interviewed at once. Darius’s watch and other personal possessions are taken away. He is then interviewed for three hours by Bucket without a break, during which time Darius is forced to remain standing. He persistently denies his involvement. At the end of three hours Bucket concludes the interview and Darius is returned to his cell. Shortly afterwards, however, Bucket visits the cell and says to Darius, ‘You have a daughter, don’t you? It would be such a pity to bring her in as well, but I think she might be willing to help us over this little problem. Some of our female officers are so persuasive.’ Darius breaks down in tears and says, ‘Euan and I did the burglary together, but I only got involved because he threatened to cut my daughter’s face if I refused.’ He is then allowed to see a solicitor. At a second formal interview Darius, in the presence of the solicitor, repeats what he said in the cell to Bucket.
Euan is allowed access to a solicitor, but on the solicitor’s advice he refuses to answer any police questions.
Discuss the evidential matters arising.
Both Darius and Euan have to answer a charge of burglary and the prosecution will rely on Darius’s confession that he committed the offence. A confession is an out of court oral or written statement, which is wholly or partly adverse to the maker, and which is adduced as an exception to the hearsay rule under s 76(1) of PACE 1984. However, the defence counsel will try to destroy the prosecution’s case hence disproving the confession obtained by the police. (1) This sentence suggests that use of English may be a problem. Defence counsel probably does have this overall aim, but it is unlikely to include disproving the confession. He is much more likely to be interested in excluding it. The defence counsel will argue that the confession is unreliable and thus should not be admissible. The three possible ways for the defence to exclude such unfairly obtained evidence (2) You have done nothing yet to explain why Darius’s confession was ‘unfairly obtained’ and should not, therefore, refer to it as such. are as follows: (i) whether the confession has been obtained by oppression under s 76(2)(a); (ii) whether the confession has been obtained by ‘anything said or done which is likely to render the confession unreliable; (3) You open quotation marks, but fail to close them. How much did you intend to be an exact quotation? In fact your summary of s 76(2)(b) is inaccurate. (iii) whether there has been any breach of Code of Practice C. (4) This is not a separate ground for exclusion. Breach of one of the codes can be used to support an argument for exclusion under s 76 or s 78.
Here Darius’s confession is obtained under s 76(2)(b) of PACE, and there is no likelihood that it is an oppression under s 76(2)(a) (Fulling). (5)
You must show why you think this is not an example of oppression if you decide to mention the possibility. The bare reference to a case that discussed the meaning of oppression is wholly inadequate.
The fact is that Bucket used unfair means to obtain the confession from Darius. Had there been no such threat, he would never have confessed. So defence counsel may try to exclude the confession under s 76(2)(b), which makes exclusion mandatory if it is held to apply. The alternative is to use s 78, but here the judge has only a discretion to exclude. (6)
A good point.
There is also a breach of Code C because Bucket has questioned Darius without a break and Darius was forced to remain standing. (7)
Yes, but did this have any influence on Darius when he made his confession?
Darius was refused access to a solicitor, and this was breach of his right under s 58 PACE. This is another ground for exclusion. However, access might have been denied properly because the offence is serious and Bucket believed that recovery of the stolen property might be hindered. (8)
This is dealt with much too briefly. See Code C, Annex B. And if there was a breach, did it influence the making of the confession?
The second interview was held in the presence of a solicitor, but was this tainted by the first interview? (See McGovern and Neil.) (9)
Again, too brief. You might at least discuss the question of a second ‘tainted’ interview in relation to the facts of this case.
In the course of both confessions Euan is implicated by Darius. What Darius said about him would have been admissible had he been present when the confession was made, but he was not. If he had been, he could have accepted what was said or dissociated himself from it. Euan’s counsel may ask for the reference to his client to be edited out if Darius’s confession is admitted. The general rule, as shown by Gunewardene, is that what one defendant says about another outside court is not evidence against that other unless he expressly or by implication adopts it. (10) You are aware that there is a problem, but see now J(S) [2009] EWCA Crim 1869. The editing of confessions requires a reference to Lobban.
Euan refused to answer questions on his solicitor’s advice. By virtue of s 34 of the Youth Justice and Public Order Act 1994, the judge may comment on his silence. (11) More needed. In what circumstances? If comment is justified, what directions must the jury be given?
General Comment: The candidate has shown some awareness of relevant law, especially in references to the admissibility of confessions, a defendant’s right to legal advice, the effect of a defendant’s silence when questioned by police, and the evidential status of a confession that implicates a co-defendant. However, there are many gaps in knowledge, and some of the law is wrong. This answer might come within the lower-second range, but that result could not be guaranteed, and the candidate could well end up with only a third class mark.