PACE section 76: oppression and the unreliability limb

Section 76(2) concerns a confession which the prosecution proposes to give in evidence. Where it is represented that the confession was or may have been obtained by either prohibited route, the court must apply the statutory safeguard. A representation is the raising of the issue on an identified factual basis; it is not a requirement that the defence first prove oppression on the balance of probabilities. Plead the two routes separately, even when the same facts support both.

Limb 1 — oppression, s 76(2)(a). OppressionGlossary termOppression carries a strong meaning: serious harsh or wrongful exercise of authority, or comparable cruel or burdensome treatment. Section 76(8) expressly includes torture, inhuman or degrading treatment, and the use or threat of violence, whether or not it amounts to torture. The definition is inclusive, not a closed list. The confession must have been obtained by the oppressive treatment. Firm questioning, persistence or a procedural breach does not, without more, necessarily establish this limb.

Case application — Fulling. R v Fulling (1987)Key caseR v Fulling[1987] QB 426, reported at [1987] QB 426, concerned obtaining property by deception through a false insurance claim. The defendant alleged that police told her that her lover was having an affair with another arrested woman held nearby; the officers disputed that account. The case illustrates the distinction between distress and the strong legal meaning of oppression. Its ordinary-meaning approach was expressly endorsed in Hasan, paragraph 53. For a new problem, identify the treatment, its seriousness and its connection to the confession rather than treating every upsetting remark as oppression. This does not make emotional pressure irrelevant to s 76(2)(b) or s 78.

Limb 2 — things said or done likely to produce unreliability, s 76(2)(b). The section 76 unreliability limbGlossary termSection 76 unreliability limb requires a disciplined chain:

1. Identify the particular thing said or done, including a relevant failure to provide a safeguard where the facts support that argument.
2. Identify the circumstances existing at the time, including this suspect’s age, condition, understanding and situation where relevant.
3. Ask whether, in those circumstances, the thing was likely to render unreliable any confession which might be made in consequence.
4. Establish the connection between that thing and the obtaining of the confession challenged.

This is an objective assessment of the method in its actual circumstances, not an abstract test involving an unaffected average suspect. Nor is it confined to deliberate police misconduct or threats. A vulnerable condition is not, by itself, a substitute for identifying the words, conduct or omission relied on. Conversely, the absence of oppression does not answer the separate unreliability limb. An apparently accurate confession can still have been obtained by a prohibited method.

Oppression in practice

Paris, Abdullahi and MillerKey caseR v Paris, Abdullahi and Miller(1993) 97 Cr App R 99; analysed in Charlton and another v R [2016] EWCA Crim 52, paragraphs 50–60 shows why the whole recording matters: a calm extract does not neutralise sustained bullying elsewhere. A solicitor's physical presence is not an answer to the treatment of the suspect. Identify the conduct and its effect under section 76, and keep the separate admissibility position of each co-accused visible. The case facts and the original appeal result used here are those expressly analysed by the Court of Appeal in Charlton [2016] EWCA Crim 52, paragraphs 50–60.