Burden, voir dire and the judge’s ruling

A burden of proof identifies who must establish a proposition; a standard of proof identifies how convincingly it must be established. Section 76 places the ultimate legal burden on the prosecution once the relevant issue is engaged. The defence should identify the alleged facts, the statutory limb and the statement or passage challenged. It need not prove the confession false or prove the prohibited treatment on a civil standard. Section 76(3) also allows the court to require proof on its own initiative when the prosecution proposes to rely on a confession.

Raise the issue as soon as it can properly be identified, obtain the relevant material and seek directions for resolving disputed facts. This follows the early identification and case-management duties in CrimPR 3.2–3.3; it is not an invented confession-specific notice period. Deep Dive 5 governs disclosure requests and the wider pre-trial timetable. A missing record should prompt an evidence request and an explanation of why it matters, not an assumption that either side’s account is proved.

In a Crown Court jury trial, the judge decides disputed admissibilityGlossary termAdmissibility. A voir direGlossary termVoir dire, sometimes called a trial within a trial, is an evidential hearing in the jury’s absence to determine that legal issue. It prevents the jury hearing disputed confession material before the gateway is decided. It is not required as an empty formality where there is no factual issue to resolve.

The prosecution ordinarily calls the officers or other witnesses needed to establish how the confession was obtained. The defence may challenge that evidence and call evidence about the obtaining circumstances. The defendant may testify for this limited purpose without thereby electing to give evidence to the jury on guilt. Evidence received only at this hearing is not automatically evidence before the jury. The judge finds the relevant facts and applies the prosecution’s statutory criminal standard. (PACE s 76(2)–(3); R v Mushtaq [2005] UKHL 25, paragraphs 37–43.)

In a magistrates’ court, the bench or District Judge decides admissibility without a jury. The same tribunal must keep its legal decision about receiving the evidence distinct from its subsequent assessment of guilt and weight. There is no prosecution entitlement to admission merely because the eventual fact-finder has also heard the admissibility argument.

The ruling should answer, in order: is this a prosecution confession against its maker; what prohibited route is raised; has the prosecution proved beyond reasonable doubt that it was not so obtained; and what separate exclusionary controls remain? If the statutory burden is not discharged, exclude under s 76. If it is discharged, consider s 78 separately. Neither corroboration nor probable truth substitutes for proof of proper obtaining. The judge is deciding the evidential gateway, not guilt.

A pure dispute about whether the defendant made the words at all is not identical to an allegation that a confession was improperly obtained. Identify which issue is actually supported. If the statement is admitted, the fact-finder may still reject the allegation that it was made, or reject its accuracy. Section 7 explains the additional direction where evidence before the jury raises prohibited obtaining.