H and L are charged with the murder of P.

Only H was interviewed by the police

initially. He asked for a solicitor but his request was turned down by the
superintendent on the grounds that Ps body was not recovered yet. H was
interviewed between 2 a.m. to 1.30 p.m. without a break. H was not offered any
water nor food. Finally, at the end of the interview H said I killed her (P) and I
was encouraged to do so by L (co-defendant). Her body was dumped in an alley.
Ps body was recovered and L was taken into custody. L did not ask for a lawyer
and neither was it offered to him. The superintendent said listen sunshine we
know all about it, so you better confess and if you dont my officer has some
interesting little games to play with you. L then confessed to killing P. Two days
later L was allowed to see a lawyer. He was interviewed by a different officer and
made a full confession again.
Discuss the evidential issues arising.

In relation to S.82(1) PACE 1984, confession is defined to read any statement

wholly or rather partly adverse to the party who made it, whether made to a
person in authority or not and whether made in words or otherwise. The case at
hand highlights a typical scenario where a couple of accused were brought to the
police station for interrogation purposes in relation to a murder. This analysis will
seek to decode the legal rules behind the area of confession and other
substantial issues pertaining to the above said area.
To provide a clear illustration as to what would render statements to be
classified, the statements in itself should be read closely to understand its true
meaning and form as evidenced there are partly incriminating and partly
favourable statements at hand. This could also be grouped as a mixed
statement. On the facts, a vital point to be taken into consideration should be the
content of the mixed statement by H. The partly adverse statement in the
context would read I killed P and the partly favourable words would include
encouraged to do so by L. In reference to a judicial decision in R v Sharp which
governs the area of mixed statement its said that mixed statement are regarded
as a type of confession and it is also admissible as a whole. If the statement was
I did not kill it would culminate to a wholly favourable and thus would not
constitute a confession. If so there would be no need to raise breaches of Code
of Practice (C). However, the confession made by H is a clear regard of an
instance of a mixed statement and shall be admissible as a whole.
The question arises as to if the confession be excluded? The answer to this lies in
the discussion below. The suspect H, has been clearly subjected to a denial of
access to solicitor. S.58 of the PACE 1984 provides the suspect with the right
to access legal advice. The only restriction placed on this right stems if the
offence is a serious arrestable one and a police officer with the rank of at least
superintendent on the grounds laid under S.58(8). The column of this section
reads that the refusal of the suspects right can be made on the basis there exist
reasonable grounds for believing that the exercise of this particular right would
entail to interference with or harm to evidence connected with the offence, or
could lead to the alerting of other persons suspected to having committed such
an offence but not been arrested for, or would to a certain degree hinder the
recovery of any property in relation to the case. With the case in hand, H asked

for a solicitor but had his request turned down by the superintendent on the
grounds that P was not recovered yet. In the case of R v Samuel the COA
thought a refusal under S.58 would only be very exceptionally justified because
solicitors are professionals and, it is highly unlikely that their advice would give
rise to the conditions of this provision being satisfied. The right to a solicitor is
considered to be a fundamental legal right, and on many occasions its refusal
has led to confession evidence being excluded. However there are presence of
some contradictory cases such as R v Alladice, where refusal to allow a suspect
access to legal advice was unreasonable. However, the confession was not
excluded, because here the suspect was an experienced criminal who was well
aware of what his rights were and would therefore have been in a position to
protect himself. The question arises now as to H, if the refusal of access to a
solicitor is a valid one?
It is evident that there has been one whole session of interview between 2 a.m.
to 1.30 p.m. without any break offered to H. Neither was there any water or food
available. Could this be rendered to have breached the Code of Practice (C)?
Code C Para 12.8 reads that, breaks from interviewing should be made at
recognised meal times or at other times. Short refreshment breaks should also
be provided at approximately 2 hours interval. It was said in R v Delaney by
Lord Chief Justice that the mere fact that has been a breach of the codes of
practise does not mean in itself that the evidence has to be rejected. It is
understood that breaching of code C may result in the exclusion of the evidence
on the grounds of unreliability under S.78 of PACE. The definition of S.78 read
as follows, in any proceedings the court may refuse to allow evidence on which
the prosecution proposes to rely to be given if it appears to the court that,
having regard to all the circumstances, including the circumstances in which the
evidence was obtained, the admission of the evidence would have such an
adverse effect on the fairness of the proceedings that the court ought not to
admit it.
The next area that would be discussed would include the confession by H which
is a partial admission of guilt in participation and partly favourable where the
blame was placed on the co-accused. Would L then be able to request the editing
of Hs confession? In relation to L the co-defendant it is said to have included a
full confession as per S.82 (1) PACE 1984. At first instance, L did not ask for a
lawyer and neither was this offered to him. As above discussed, on the refusal of
access to a lawyer would the case of R v Alladice be of best practice here? It
should be an important note to take even if L refused access to solicitor, the onus
is on the police to ask if he indeed required legal access. Since the police failed
clearly and out rightly breached a Code C, could the confession fall under the
ambit of S.78? The general rule, against request of editing of a confession is laid
down in R v Dibble, where editing of a confession was agreed and it was against
the maker only. In this case it would held to L. However, in the case of R v
Lobban confession made was a relevant evidence and no editing by the codefendant was allowed. It was said to have filled the lacunae and have probative
value in the holistic view of the case. However, with the case at hand, the
confession by H linking L could be edited because L does make a well informed
confession independently later on.

The next area under review would be concerning the area of oppression,
questions arise if some accounts of the occurrences could subject to oppression?
The statutory definition as per the s.76(8) where the area of In this section
discuss on oppression includes torture, inhuman or degrading treatment, and
the use or threat of violence (whether or not amounting to torture). The
definition at common law was as per the case of R v Fulling. The Court of Appeal
held that oppression meant, something above and beyond that which is
inherently oppressive in police custody, and must import some impropriety,
some oppression actively applied in an improper manner by the police.
In the case of R v Seelig, it was held that numerous breach of Code C can be
subjected to a certain degree of oppression. With this as established, it can be
said on the facts presented, that there is no sign of a significant oppression, a
minor breach could not intend to rely on s.76 (2) (a).
***Confession could all then to be held admissible.
On the assumption that Hs confession is excluded somehow, pursuant to S76(4)
the discovery of the body is still admissible. Confession by L where made it is
made pursuant to S(81)(1). Would the confession amount to oppression? In the
case of R v Paris it was said that even with the absence of physical violence,
oppression can still take place. However, the aforementioned case was subjected
to its specific nature.

Expressly the statement by the police does not signify an oppressive act,
however the context in which it was made,S76(2)(b){Is there anything said or
done} we can still imply little games would connote some cruel, harsh
treatment. Based on this, oppression has taken place, and the confession by Y
can be excluded.
In relation to the second interview, question stems if the interview is valid?
-

Is the second confession admissible, despite the first confession is tainted

by oppression?

R v McGovern- If 1st confession is tainted, second confession equally tainted;

thus inadmissible. This case should be contrasted with R v Neil where it was said
that if 1st tainted, 2nd can be admissible.

Based on the facts, a few things should be taken note of:

-

There were two days of interim before the subsequent confession

Solicitor present at this time of confession
Different officer present this time around

Based on R v Neil, 2nd confession is not tainted, thus admissible.