Confession Evidence Practice Questions

Free NPPF Step 2 Confession Evidence questions with full answers, for Sergeant and Inspector candidates.

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About this topic

Confession evidence questions test when a confession must be excluded and when the court has a discretion to exclude evidence. The difference between s.76 and s.78 PACE is a favourite exam point.

Know oppression and unreliability under s.76(2), the burden and standard of proof on the prosecution, and the general fairness discretion under s.78.

Key legislation and cases

Police and Criminal Evidence Act 1984, ss.76, 77 and 78

Worked examples

Try each question before opening the answer. Every option is explained, because the exam usually turns on why the near-miss answers are wrong.

Worked question 1 of 2Standard

During a drug supply trial the defence apply under s.78 PACE 1984 to exclude a confession made without a solicitor present despite Lee having requested one and no s.58 delay being authorised. Which of the following correctly states the test under s.78?

AThe court must exclude the confession as it was obtained in breach of s.58 PACE - any breach of the right to legal advice automatically requires exclusion under s.78.
BThe court must exclude any evidence obtained in breach of the PACE codes - s.78 operates as a mandatory exclusion rule for all Code breaches.
CThe court has a discretion to exclude the evidence if, having regard to all the circumstances including how it was obtained, admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
DThe court may only exclude the evidence under s.78 if the defendant suffered actual prejudice as a result of the breach - a technical breach without demonstrable prejudice cannot found exclusion.

Show answer and explanation

Answer: C

Under s.78 PACE 1984 the court may refuse to allow evidence if, having regard to all the circumstances including how it was obtained, admission would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. The power is discretionary - not mandatory. A breach of PACE or the Codes does not automatically require exclusion. The court weighs all the circumstances including the significance of the breach, whether it was deliberate, and overall fairness.

s.78 PACE 1984

s.78(1): In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely 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.

A: Exclusion under s.78 is not automatic following a s.58 breach. The court has a discretion and must consider all the circumstances - a serious deliberate breach is more likely to lead to exclusion but the test is fairness, not automatic exclusion.
B: s.78 is a discretionary power - not a mandatory exclusion rule. Code breaches are relevant to the s.78 assessment but do not automatically require exclusion regardless of their nature.
D: Actual prejudice is not a prerequisite for s.78 exclusion. A serious breach of a fundamental right such as access to legal advice may justify exclusion even where specific prejudice is difficult to quantify.

Worked question 2 of 2Standard

DC King interviews Page, a suspect in a burglary investigation. During the interview DC King shouts at Page repeatedly, gets very close to his face, tells him he will make sure he goes to prison unless he admits the offence, and threatens to arrest Page's wife. Page makes admissions. At trial Page argues the confession should be excluded under s.76 PACE 1984. Which of the following most accurately states the legal position?

AThe confession is admissible because Page made the admissions voluntarily - he was not physically harmed and could have exercised his right to silence.
BThe court has a discretion under s.76 PACE to admit or exclude the confession depending on whether the oppression actually caused Page to confess.
CThe confession must be excluded under s.76(2)(a) PACE - where the prosecution cannot prove beyond reasonable doubt that the confession was not obtained by oppression, the court must exclude it.
DThe confession may be excluded under s.78 PACE if the court considers that admitting it would have an adverse effect on the fairness of proceedings, but exclusion is not automatic.

Show answer and explanation

Answer: C

Section 76(2)(a) PACE 1984 requires the court to exclude a confession if it was or may have been obtained by oppression - unless the prosecution proves beyond reasonable doubt that it was not so obtained. Exclusion under s.76 is not discretionary - it is mandatory once oppression is established. Shouting, physical intimidation, threats to imprison the suspect, and threats against family members all go to oppression within s.76(8). The prosecution cannot prove beyond reasonable doubt the confession was not obtained by oppression on these facts. The confession must be excluded.

s.76(2)(a) PACE 1984

s.76(2) PACE 1984: If it is represented to the court that the confession was or may have been obtained by oppression of the person who made it, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession was not obtained as aforesaid.

A: Voluntary admission in a technical sense is not the test. Section 76 looks at whether the confession was obtained by oppression - the absence of physical harm does not prevent the conduct from constituting oppression under s.76(8).
B: Section 76 is not discretionary unlike s.78. Once oppression is made out and the prosecution cannot disprove it to the required standard, exclusion is mandatory. There is no judicial discretion to admit.
D: Section 78 is a discretionary power to exclude where admission would be unfair. Where s.76 oppression is established, s.76 applies and exclusion is mandatory - s.78 does not substitute for s.76 and is the lesser provision.

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