Silence, Confessions, and Improperly Obtained Evidence ( OMOCL&J) (Oxford Monographs on Criminal Law and Justice)

This important new book examines in some detail the law relating to confessions, unlawful evidence, and the right to silence in the police station. Peter Mirfield also looks closely at the principles behind this branch of the law. In addition to his thorough examination of the English position, he considers several alternative approaches—namely, those taken by Scottish, Irish, Australian, Canadian, and American legal systems. There is no other book written in English that affords such a systematic treatment on this subject. Cover Silence, Confessions and Improperly Obtained Evidence General Editor’s Introduction Preface Contents Table of Cases Table of Statutes STATUTORY INSTRUMENTS CONVENTIONS 1 Introduction SCOPE OF THE BOOK THE ISSUES BROADER CONSIDERATIONS 2 The Principles Behind Exclusion INTRODUCTION THE RELIABILITY PRINCIPLE CONFESSIONS, UNLAWFULLY OR UNFAIRLY OBTAINED EVIDENCE, SILENCE—AND RELIABILITY RELIABILITY PRINCIPLE AS PARAMOUNT OR EXCLUSIVE? SOURCES OF UNRELIABILITY THREE MODES OF RESPONDING TO UNRELIABILITY THE NEMO DEBET PRINCIPLE NEMO DEBET, THE RIGHT TO SILENCE, AND THE PRIVILEGE AGAINST SELF-INCRIMINATION THE CONTENT OF THE NEMO DEBET PRINCIPLE THE VALIDITY OR VALUE OF THE NEMO DEBET PRINCIPLE THE PROTECTIVE PRINCIPLE THE DISCIPLINARY PRINCIPLE THE NATURE OF THE DISCIPLINARY PRINCIPLE PREDICTING DISCIPLINARY EFFICACY OF EXCLUSION THE WRONG VEHICLE OR WRONG PLACE FOR DISCIPLINE? THE JUDICIAL INTEGRITY PRINCIPLE THE PRINCIPLE OR PRINCIPLES STATED JUDICIAL INTEGRITY IN ENGLISH LAW TESTING THE PRINCIPLES COGENCY OF EVIDENCE HEINOUSNESS OF BREACH SERIOUSNESS OF THE OFFENCE 3 Procedural Issues and Exclusion THE DEVELOPED COMMON LAW POSITION CONFESSION EVIDENCE—ARGUMENTS ABOUT ADMISSIBILITY CONFESSION EVIDENCE—ARGUMENTS ABOUT DISCRETION NON-CONFESSION EVIDENCE RECONSIDERING EXCLUSION ISSUES THE POLICE AND CRIMINAL EVIDENCE ACT 1984 EXCLUSION UNDER SECTION 76 EXCLUSION UNDER SECTION 78 RECONSIDERATION AND DEFERRAL OF EXCLUSION ISSUES SECTIONS 76 AND 78 RELIED UPON IN THE ALTERNATIVE EXCLUSION UNDER SECTION 82(3) THE JUDICIAL POWER UNDER SECTION 76(3) BURDEN AND STANDARD OF PROOF THE EXCLUSIONARY RULE FOR CONFESSIONS THE EXCLUSIONARY DISCRETION 4 Confessions—Preliminary Issues FUNCTIONS OF JUDGE AND JURY THE MEANING OF ‘CONFESSION’ JUDICIAL CONFESSIONS ADMISSIONS FALLING SHORT OF FULL CONFESSIONS STATEMENTS ON THEIR FACE EXCULPATORY CONDUCT STATEMENT SHOWING MODE OF SPEECH, WRITING, OR EXPRESSION ‘MIXED’ STATEMENTS CONFESSIONS OF THIRD PARTIES CONFESSIONS OF NON-ACCUSED THIRD PARTIES CONFESSIONS OF CO-ACCUSED EXCULPATING THE ACCUSED CONFESSIONS OF CO-ACCUSED INCULPATING THE ACCUSED QUESTIONING THE ACCUSED ON THE VOIR DIRE EVIDENTIAL USE OF THE ACCUSED’S STATEMENTS ON THE VOIR DIRE 5 Confessions—The Exclusionary Rule THE COMMON LAW RULE THE STATUTORY RULE OPPRESSION THE DEFINITION GIVEN IN FULLING THE ELEMENTS OF OPPRESSION A High Level Concept The Fact and Degree of Unlawfulness or Impropriety Emphasis upon the Physical and Temporal Circumstances Personal Characteristics of the Suspect TORTURE, ETC. UNRELIABILITY ANYTHING SAID OR DONE RELEVANCE OF POLICE IMPROPRIETY THE CIRCUMSTANCES EXISTING AT THE TIME LIKELY TO RENDER UNRELIABLE ANY CONFESSION WHICH MIGHT BE MADE BY HIM CAUSATION SUBSEQUENT CONFESSIONS 6 Discretionary Exclusion of Confessions and Other Evidence—General Principles THE COMMON LAW DISCRETION THE RULE OF ADMISSIBILITY THE DISCRETION BEFORE SANG THE EFFECT OF SANG THE EFFECT OF THE 1984 ACT THE DISCRETION UNDER SECTION 78(1) OF THE 1984 ACT JURIDICAL NATURE OF DISCRETIONARY EXCLUSION THE CATEGORIES OF UNFAIRNESS THE THEORY OF SECTION 78 UNFAIRNESS THE UNRELIABILITY DISCRETION THE UNFAIRNESS DISCRETION Inequality of Access to Evidence Breach of Promise as to Use Judicial Fiat The Decision in Keenan No Recourse to Disciplining the Police DELIBERATE AND BAD FAITH BREACHES FAIRNESS TO BOTH SIDES WIDER THAN SANG CAUSATION SUBSEQUENT CONFESSIONS CASES WHERE THE QUESTIONING CODE (CODE C) IS INAPPLICABLE ABUSE OF THE PROCESS OF THE COURT 7 Discretionary Exclusion of Confessions and Other Evidence—Specific Cases THE ACCURACY OF THE RECORD BREACHES OF THE QUESTIONING CODE Meaning of ‘Interview’ The Discretion in Cases of Interview Breach TAPE-RECORDING Admission of the Taped Record Itself Admission of the Transcript with the Taped Record Admission of the Transcript Alone Admission of a Précis or Summary Ancillary Matters OTHER ELEMENTS OF THE FORMAL RECORD DEFECTS OF THE FORMAL RECORD The Completeness of the Record The Accuracy of Prepared Summaries THE CODE C RIGHTS RIGHT TO LEGAL ADVICE Varieties of Breach Significant and Substantial Breaches Culpability and Bad Faith Causation Breath Test Cases Adequacy of Legal Advice RIGHT NOT TO BE HELD INCOMMUNICADO OTHER RIGHTS The Right to be Cautioned The Right Not to be Detained Unlawfully IDENTIFICATION PROCEDURES FAILURE TO CARRY OUT AN IDENTIFICATION PROCEDURE The Hierarchy of Procedures The Relevance of a Dispute about Identification Effects of Breach Impracticability CONTAMINATION OF IDENTIFICATION PROCEDURES DELIBERATE AND FLAGRANT BREACHES: BAD FAITH SIGNIFICANCE OF THE SUSPECT’S CONSENT EXCLUSION WHERE CODE D IS INAPPLICABLE TRICKERY AND ENTRAPMENT SOME TERMINOLOGY AGENTS PROVOCATEURS, ENTRAPMENT, AND SECTION 78(1) UNFAIR GATHERING OF EVIDENCE Kinds of Evidence The Grounds for Exclusion: Express Deception The Grounds for Exclusion: Implied Deception UNLAWFUL SEARCHES AND TRESPASS UNLAWFUL SEARCHES OF THE PERSON OR PROPERTY UNLAWFUL SURVEILLANCE FACTORS RELEVANT TO THE EXERCISE OF THE DISCRETION 8 Confessions: Ancillary Issues Under the Exclusionary Rule and Discretion INVOLUNTARY SIGNATURE NO ‘PERSON IN AUTHORITY’ REQUIREMENT USE OF EXCLUDED CONFESSIONS OTHER THAN BY THE PROSECUTION AS PART OF ITS CASE EVIDENCE YIELDED BY INADMISSIBLE CONFESSIONS MODE OF SPEECH, WRITING, or EXPRESSION FACTS DISCOVERED IN CONSEQUENCE OF THE CONFESSION 9 Compelled Self-incrimination and Incriminating Silence GENERAL INTRODUCTION COMPULSORY EXAMINATION OF SUSPECTS AND OTHERS THE SUBSTANTIVE PROVISIONS THEIR EVIDENTIAL EFFECTS NON-APPLICATION OF THE ORDINARY LAWS OF CRIMINAL INVESTIGATION EXCLUSION UNDER THE EVIDENTIAL PROVISIONS OF THE 1984 ACT COMPULSORY ACQUISITIONS OF NON-CONFESSIONAL EVIDENCE PRELIMINARY REMARKS DOCUMENTS ANCILLARY TO COMPULSORY EXAMINATION NON-CONFESSIONAL EVIDENCE OTHERWISE ACQUIRED COMPULSORILY SILENCE AND REFUSAL AS INCRIMINATING EVIDENCE: INTRODUCTION EVIDENTIAL EFFECTS OF PRE-TRIAL ‘SILENCE’54 THE FOUR KINDS OF EVIDENTIAL SIGNIFICANCE THE COMMON LAW POSITION (OTHER THAN ON IMPLIED ADMISSIONS) THE ‘RIGHT TO SILENCE’ DEBATE THE STATUTORY LAW ON PRE-TRIAL SILENCE Silence at Trial (Section 35)97 Pre-trial Silence—the Essential Elements (Section 34) Caution Requirement Silence Defence Facts Reasonable Expectation Proper Inferences Pre-trial Silence—Procedures (Section 34) The Division of Responsibility The Procedure for Decision-making Other Adverse Inferences from Pre-trial Silence (Sections 36 and 37) Features Common to Both Sections Features Distinguishing the Two Sections Evidential Use of Adverse Inferences Elements Common to Sections 34, 36 and 37 Exclusion of Unfair Evidence of Silence THE COMMON LAW RELATING TO IMPLIED ADMISSIONS EVIDENTIAL EFFECTS OF PRE-TRIAL REFUSAL TO PROVIDE ITEMS EVIDENTIAL EFFECTS OF PRE-TRIAL NON-DISCLOSURE OR DEFECTIVE DISCLOSURE INTRODUCTION THE ELEMENTS OF THE NEW DISCLOSURE REGIME ADVERSE INFERENCES FROM FAULTS IN DISCLOSURE 10 Vulnerable Suspects INTRODUCTION VULNERABILITY AND SECTION 76(2)(B) VULNERABILITY AND SECTION 78 VULNERABILITY AND ‘THE APPROPRIATE ADULT’ FAILURE TO COMPLY WITH PARAGRAPH 11.14 MEANING OF ‘THE APPROPRIATE ADULT’ THE PURPOSE OF PRESENCE OF ‘THE APPROPRIATE ADULT’ USE OF ‘THE APPROPRIATE ADULT’ WITHDRAWING THE CASE FROM THE JURY SECTION 77 WARNINGS THE ADMISSIBILITY OF EVIDENCE TO ESTABLISH MENTAL DISORDER OR HANDICAP 11 The Relevance of the European Convention on Human Rights INTRODUCTION THE EFFECT IN ENGLISH LAW OF CONVENTION PROVISIONS COMPELLED SELF-INCRIMINATION AND ADVERSE INFERENCES FROM SILENCE COMPELLED SELF-INCRIMINATION The Decision in Saunders v. United Kingdom The Impact of Saunders v. United Kingdom upon English Law ADVERSE INFERENCES FROM SILENCE The Decision in Murray v. United Kingdom The Impact of Murray upon English Law ‘Solely or Mainly’ The Caution The Role of the Judge Legal Advice Evidential Use of Silence RELEVANCE TO THE EXERCISE OF THE SECTION 78(1) DISCRETION THE DECISION IN KHAN CONVENTION BREACH AND THE SECTION 78(1) DISCRETION THE EUROPEAN UNION DIMENSION 12 Alternative Approaches INTRODUCTION EXCLUSIONARY RULES IN THE UNITED STATES THE MAPP RULE The Governing Principle(s)? Absence of Balancing—and its Attendant Problems Limiting the Impact of Mapp—the Good Faith Exception THE MIRANDA RULE Confessions at Common Law The Decision in Miranda Itself The Retreat from Miranda Person in Custody Interrogation Warning of Rights Scrupulous Honour Waiver Re-assertion Impeachment Public Safety Conclusion THE FRUIT OF THE POISONOUS TREE The Basic Doctrine Exceptions and Non-exceptions The Special Rule for Primary Evidence Obtained in Breach of Miranda EXCLUSION FOR UNFAIRNESS IN SCOTLAND INTRODUCTION THE DECISION IN CHALMERS DEVELOPMENTS SINCE CHALMERS SUPPORTING EVIDENCE OR WARNING REQUIREMENTS FOR CONFESSIONS INTRODUCTION SUPPORTING EVIDENCE IN AUSTRALIA CORROBORATION IN SCOTLAND RECOMMENDATIONS OF THE ROYAL COMMISSION EXCLUSION FOR UNFAIRNESS OR TO DEFEND JUDICIAL INTEGRITY SCOTLAND The Rule in Lawrie v. Muir The Principle Behind the Rule Guidelines IRELAND The Exclusionary Rule for Evidence Obtained in Breach of the Constitution Scope of the Exclusionary Rule The Principle Behind the Rule The Inclusionary Exception AUSTRALIA Development of the Bunning v. Cross Discretion The Principle Behind the Discretion Scope of the Discretion Presumptions and Onuses Factors or Matters Governing the Discretion CANADA Exclusion to Prevent Judicial Disrepute Exclusion by Rule or by Discretion? Causation The Test of Judicial Disrepute Index