British court procedure question

Factual Questions
1

This comes from something that was on Broadchurch season 2 so if you don’t want spoilers stop right now.

During a murder trial the detective that heard the confession of the defendant is on the stand. He gives his testimony as to what was said in the confession. The defense in cross brings up something that happened after the confession. Something that was on record so it’s not a surprise to the defense. (In this case it was that the defendant was struck by another officer after the confession but the details aren’t important) After the cross the defense moves for the confession to be thrown out. After about 5 seconds of thought the judge agrees and instructs the jury to disregard the confession.

So here’s the question, is that just tv bullshit or is that how things are done in the UK? In the US that would have all been handled in a pretrial hearing. The defense would make a motion to suppress the confession. Both sides would give their reasons. The judge will take time and then give a written decision. Nothing in front of a jury. If there was a chance a confession could get thrown out the prosecution would love it if a jury heard it even if they were instructed to disregard.

So is this tv bullshit? In UK courts do they have pretrial hearings to take care of things like this or does it happen in open court in front of a jury?

2

IANAL, but even I spotted no end of howlers in the legal shenanigans in Broadchurch2, right from the start (the victim’s family doesn’t get to choose the prosecutor, let alone get one to come out of retirement, even if she’s Charlotte Rampling). So it would be no surprise if the various courtroom events were also improbable. I can’t remember if they even fell into the basic trap of giving the judge a gavel, but it wouldn’t surprise me.

Fortunately, Broadchurch3 moved back on to much more secure interpersonal dramatic ground.

3

There is an real life case that happened in the past few years.

A taxi driver in Swindon was arrested with regards to the disappearance of a girl. He was read his rights, interviewed under caution and solicitors present. Suspect admits to crime and says he will show where body is hidden. He takes them to the scene where he buried the girl. All good. Crime solved.

On the way back to the station, suspect volunteers to the police inspector that there are other bodies nearby and he can take the police there right away.

Police agree, body found and another cold case solved. Guess what…courts decided that he cannot be prosecuted for the crime as he was not given a new caution about this second crime and did not have legal advice. Inspector sacked. Yes our courts are useless.

4

Not according to the Wiki article you linked. As per that, the confessions were ruled as inadmissable, but there was sufficient other evidence for trial and conviction. Life sentence obtained, he will never be paroled.

Inspector disciplined, not sacked, but resigned.

Our courts rock.

5

Anyone mind a question about the first Broadchurch series, one that necessarily involves a spoiler?

In the final episode, Joe Miller, father of Tom, who was a classmate and friend of the deceased, confesses to killing Danny Latimer, because Danny threatened to reveal Joe’s “inappropriate attachment” (as the Wikipedia summary puts it). But it’s not made clear what the nature of the relationship was. Were they just avoiding saying it was a sexual relationship between an adult man and an eleven-year-old boy?

6

In the final episode, Joe Miller, father of Tom, who was a classmate and friend of the deceased, confesses to killing Danny Latimer, because Danny threatened to reveal Joe’s “inappropriate attachment” (as the Wikipedia summary puts it). But it’s not made clear what the nature of the relationship was. Were they just avoiding saying it was a sexual relationship between an adult man and an eleven-year-old boy?

I’ve just watched all 3 seasons of Broadchurch (jolly good stuff!)

Based on that (there are references in the later series to the original murder) I would say the relationship had only got as far as hugging. However it was conducted in secret and there was some grooming taking place.
So when Danny felt uncomfortable and stated he was going to tell his family, Joe panicked and killed him.

7

Under English (not British) law there are three distinct ways a confession can be excluded.

  1. Under Section 76 of the Police and Criminal Evidence Act 1984, where a confession was made through “oppression” or it is in the circumstances unreliable, exclusion here is mandatory.
  2. Under Section 78 of the 1984 Act where the Court concludes that the evidence (this applies to all evidence not just confessions) is obtained in such a manner that it would have an adverse effect on the fairness of the proceeding, it may exclude said evidence.
  3. Under common law, where the probative nature of the evidence is exceeded by its prejudicial effect.

The decision to exclude or not exclude is made by 6he judge alone, any oral representations is made in the absence of a jury. Generally, these applications to exclude are made in pre-trial applications, and in a case as the OP where its already apparent on the record (rather than something established during the trial itself) its highly unlikely any judge would even agree to hear such an application and the Counsel (unless s/he can come up with a good reason) is at best going to get admonished and at worst be looking at a Professional Conduct violation.
Best case senario

8

IANAL, and it’s been a long time, but in Aus, when I was young, oral application during (at the start of) a trial was normal (In an exceedingly important and very serious criminal trial). Jury lead out, long (very long) boring interval during which you couldn’t hear what was going on, but definitely after the jury had been selected and sworn in.

That was 40~50 years ago. I wonder if it’s changed since in my courts?

9

That’s what I was thinking. It makes little sense to have the argument in open court when it was not a secret or new information that came out during the trial. For one the defense would never want the jury to hear that there was a confession at all.

10

Known as voir dire. Still a standard part of trials.

11

If I recall correctly the conviction for murder of the second body was many years later and after much campaigning by the parents who had to go through the turmoil of knowing for many intervening years that their daughters killer was not charged for the crime due to a legal loophole.

The policeman involved had to resign. The alternative was that he would have been sacked and lost his pension. Resigning was the only option.

12

The confession rule is not a “legal loophole”. It dates back a couple of centuries, and was definitively set out as a basic protection for the person under investigation in Ibrahim v The King, a decision of the Judicial Committee of the Privy Council in 1912.

The English courts have long been suspicious of confessions. They have to be freely and voluntarily given to be admitted, without a promise of benefit or fear of harm. Put bluntly, the courts are aware of the risk of a confession being beaten out of someone in detention.

The courts have held that the best protection to ensure a confession is freely given, and is reliable, is that the person be warned of the right to silence and be advised of their right to have their solicitor present.

If an experienced police inspector fails to follow rules set out by the courts over a century ago, that’s not a legal loophole. That’s the operation of a significant legal protection.

13

About 3[sup]1[/sup]/[sub]2[/sub]

cite? I don’t know why the delay happened, but legal processes take time. I think they were probably preparing the case throughout that time, and campaigning by the parents had nothing to do with it.

cite? He wasn’t sacked, and did keep his pension. He resigned several months later.

Becky Godden misconduct detective Steve Fulcher keeps job

By that standard, is there any such thing as a legal loophole at all?

14

Yes, we use that term in Canada as well: “a trial within a trial” to determine admissibility issues. Depending on the nature of the issue and the type of proceeding, it could be done as a pre-trial motion, or as a voir dire during the trial.

15

By my view, no. The phrases “legal loophole” and “got off on a technicality” both tend to be used to mean “I don’t think the accused should have been acquitted, law be damned.”

The English courts, and then Parliament, have set out legal standards that the police must follow when interrogating a suspect. That’s a significant legal protection for the detainee. If the police don’t follow the law, that’s not a legal loophole. That’s the police joy following the law.

The rule of law requires the police to follow the law.

16

A “legal loophole” is more like an error in a statute, that goes contrary to the intended goal of the statute.

Suppose Parliament passes an act that is intended to apply to cases A, B, C, D, and E. In the House, the Minister responsible for the bill says it applies to all five cases. The Opposition agrees it covers all five cases and the bill passes.

But then when it starts to be used, lawyers start to question whether, on the wording of the statute, it actually applies to case D. They point to inconsistencies in the drafting that actually seem to exclude D from the statute. And eventually the courts rule that case D is not included, even if Parliament intended it to be, and Parliament will have to fix its mistake if it wants case D included.

But that’s not what the confessions rule is about. The courts, for over a century, and Parliament, for close to forty years, have said that if the police are questioning a suspect, they have to warn the suspect of the right to silence, that what they say can be used in court, and they’ve got a right to consult a solicitor. If the police don’t do that, the courts and Parliament have said the confession will likely be excluded.

In this case, the Inspector failed to follow the legal rules set out by the courts and Parliament, with the result that the confessions were excluded

That’s not a legal loophole.

That’s the law operating *exactly as the courts and Parliament intended it should. *

17

Yep. It would never have been brought up in court in the way it was shown on TV. All parties would have had access to all of the material, and Olivia Colman beating the shit out of her husband while he made his confession would have made it inadmissable, even though he said the damning things before she somehow got into a securely locked door that she would never have been allowed to get near, and beat him up.

And then the prosecution were totally blindsided by the suggestion that Olivia Colman’s character visited David Tennant’s character in a hotel. He lived in that hotel for several months, so it wouldn’t exactly be difficult to refute the suggestion that they were meeting for sex, but that was never brought up.

It was a good show in that in attempted to portray how difficult it is to actually convict someone, but there were many glaring inaccuracies that stood out more than usual mainly because it was trying to be more realistic. The acting and storyline make it worth watching, all the same.

18

There are issues in Loach’s question, at each of which points the question of ‘bullshit or not?’ arises.

  1. Would the leading of evidence of the confession have happened in front of the jury in procedural reality?

  2. Even if it had, what would have been the consequence?

  3. Was the basis for exclusion sound?

  4. I assume the factual correctness of the assertion that the defence knew about the beating that ultimately led to exclusion of the confession. It is then most likely that there would have been a pre-trial ‘voir dire’ where evidence was called revealing the relevant circumstances, leading to an application to exclude. If successful, the jury would never have heard of the confession in the first place. (Commonwealth courts use the expression voir dire quite differently from American courts, where the expression usually has to do with jury selection).

But I say ‘most likely’, because there can sometimes be tactical reasons why the defence does not run a voir dire to exclude. Often, the basis for the application involves disputed facts. The accused says he was bashed in circumstances that, if true, would result in exclusion. The police, however, assert that no such thing occurred.

From the defence perspective, if you run a voir dire before a judge, there is a good prospect that you won’t win (because your client might well be disbelieved). You also will probably have to call your client as a witness on the voir dire, and if you lose, your client might have blurted out something dumb along the way in that process that might be admissible at the trial proper. There are technical rules about what can and can’t be admitted like this, but we are talking about making judgments from the perspective of a time prior to the decision to have a voir dire, at which time the risk is hypothetical, so you can’t then know if it would be admissible.

Also, the process of the voir dire will alert the police to the allegations against them, giving them a chance to get their story together, or come up with a solution, or just be slicker and more confident in their answers.

On the other hand, the circumstances that go to the question of admissibility also go to the question of weight of the confession. So even if the defence loses the application to exclude, or doesn’t run it, the same facts can be run at the trial to persuade the jury that the confession was not reliable.

This then leads some respectable defence counsel to the view that having a voir dire, on balance, and in particular circumstances, is not worth the risk. Running the issue in front of the jury and watching the police look less slick and stammering and struggling under cross-ex might, in certain circumstances, be a better option. And if things go well in front the jury, there is no reason why you can’t make the application for exclusion even after the evidence has been heard by the jury. There is a certain artificiality in telling the jury to disregard a confession in those circumstances, but you are trying to create momentum here against the police, and having a judge exclude evidence in front of the jury adds to that.

So - this aspect of the show is generally bullshit, the evidence would have been excluded (or not) before the trial commenced (but there is a slight but real chance the defence might not have applied for a voir dire).

  1. If something irregular happens at a trial, the judge has discretion to remedy it in a number of ways. If it is trivial, the best exercise of the discretion might be to ignore it, because drawing attention to it might counterproductively inflate its importance in the mind of the jury. Alternatively, the judge might give more or less elaborate directions to the jury about how they must ignore it. Or the judge might declare a mistrial. Prima facie, if something as prejudicial as an in admissible confession got to be heard before a jury, then a mistrial would almost inevitably have been granted if it was applied for. But it might be that defence counsel sense they are on a winner with a wet sail and the wind behind them, so they might press on. A retrial would not see the confession, and so would not see the discomfiture of the police, and counsel might want to preserve that.

So in the circumstances you describe, this aspect of the show is probably bullshit because the result would almost certainly have been a mistrial rather than a mere warning to the jury to exclude, but it is possible that a mere warning could occur.

  1. The specific evidence here that triggered exclusion was of a beating after the confession. If that was all there was, then a beating after the confession is unlikely to result in the exclusion of the confession. How could it have induced the confession, making it involuntary or unreliable, if it hadn’t happened at the time of the confession? The beating officer may well be pursued for his own criminal conduct against the accused, but that doesn’t help the accused in the accused’s trial.

The fairness discretion and the Christie discretion (items (2) and (3) in AK84’s list above) are unlikely to be triggered by this because a beating after the confession does not affect the weight of the confession.

But it may be that things are more complicated than that. The accused may have said something happened before the confession (which the police deny) but the beating after the confession acts as a piece of retrospectant (backwards looking) evidence that makes the accused’s version more likely by showing animosity by the police or something like that.

So -on the face of things, a beating after the confession is unlikely of itself to be productive of exclusion, but it might be in the right circumstances.

On another topic, Northern Piper gives an example of a legal loophole above in the following terms:

*Suppose Parliament passes an act that is intended to apply to cases A, B, C, D, and E. In the House, the Minister responsible for the bill says it applies to all five cases. The Opposition agrees it covers all five cases and the bill passes.

But then when it starts to be used, lawyers start to question whether, on the wording of the statute, it actually applies to case D. They point to inconsistencies in the drafting that actually seem to exclude D from the statute. And eventually the courts rule that case D is not included, even if Parliament intended it to be, and Parliament will have to fix its mistake if it wants case D included.
*

Just such a thing happened recently in the High Court of Australia in R v A2 et al [2019] HCA 35. It had to do with female genital mutilation, and the question was whether 4 kinds of FGM were prohibited by a piece of legislation or only 3 ( I will spare you the details of the various kinds). The Court of Criminal Appeal had read the legislation narrowly to say only 3 were captured (the fourth was the kind that occurred on the facts of the case). The High Court reversed, concluding that all 4 kinds were captured. "Loophole’ closed.