SQE1 Criminal Litigation · Page 8 of 8

Trial presentation, directions, weight and advocate method

Confessions and Exclusion of Prosecution Evidence

Admission is a legal gateway; is the degree of reliance the fact-finder places on evidence it has heard. If a confession is admitted, the defence can still dispute whether it was made, whether it is accurate and what it means. The obtaining circumstances may be examined before the jury even though the judge has already ruled on admissibility. Do not describe judicial admission as a finding that the confession is true.

A mixed statement should be presented as a coherent relevant whole. Its admission does not depend on the defendant repeating the explanation on oath. The fact-finder may give different weight to its inculpatory and exculpatory parts after considering their context, consistency, supporting material and whether the account was tested. The prosecution may not remove the qualification merely because it assists the defence. Conversely, whole-statement treatment does not oblige the fact-finder to accept every sentence. (Hasan, paragraph 51.)

The Mushtaq safeguard. Where the evidence before the jury raises oppression or the s 76(2)(b) issue, the judge must direct the jury to disregard the confession if it concludes that it was, or may have been, obtained by the prohibited method. A direction saying “you may still use it if you think it true” is wrong. The jury is not reversing the judge’s earlier legal ruling. It is applying a safeguard when deciding what may contribute to its verdict. (R v Mushtaq [2005] UKHL 25, especially paragraphs 53–55 and 62.)

Case application — Mushtaq. The defendant was convicted of offences involving counterfeit credit cards. He alleged improper pressure during police questioning, including pressure connected with his seriously ill wife. The confession had been admitted after a voir dire. The jury was told that, even if improper obtaining was possible, it could rely on the confession if satisfied that it was true. The majority held that direction legally wrong. Nevertheless, the appeal was dismissed: the alleged impropriety was not supported by evidence before the jury; allegations put to witnesses and denied were not themselves evidence. Apply both parts: use the correct protective direction where the evidential issue is live, but identify the evidence which makes it live. Do not describe the case as holding that every admitted confession requires the same direction or that the conviction was quashed. (Mushtaq, paragraphs 28–36, 53–59.)

Section 77’s warning is a separate reliance safeguard with its own conditions, explained in section 4. It can matter even when the specific factual dispute calling for a Mushtaq direction is absent. Neither direction substitutes for applying ss 76 and 78 at the admissibility stage.

Defence method

Identify the exact statement and decide whether it was wholly or partly adverse in context.
State who tenders it and against whom.
Raise oppression and s 76(2)(b) separately, identifying the conduct, circumstances and causal facts relied on.
Obtain the interview media, custody record, legal-advice log, appropriate-adult records, medical or fitness evidence, rest history and evidence about any unrecorded period. Use the disclosure and case-management routes for missing material.
Require the prosecution to discharge its s 76 burden beyond reasonable doubt at the admissibility hearing; make a distinct alternative s 78 application where justified. If the relying party is a co-accused, use s 76A’s different standard.
Address co-accused use, editing, any separate-trial application, discovered facts, the Mushtaq direction and, where its conditions are met, s 77.
If the confession is admitted, distinguish challenges to whether it was made, its accuracy, its meaning and its weight. Identify which relevant evidence must also be put before the fact-finder rather than assuming the voir dire evidence transfers automatically.

Prosecution method

Establish authorship, context and the complete relevant statement, including qualifying passages.
Preserve and produce the recordings, custody entries, authorisations, advice and appropriate-adult records needed to establish obtaining circumstances.
Answer each alleged s 76 ground with evidence; corroboration or apparent truth does not discharge the obtaining burden.
Address s 78 separately and explain why admission does or does not have the statutory adverse effect on fairness.
Keep a discovered fact separate from the excluded words and comply with s 76(5)–(6), including the exact statutory exception.
Propose accurate editing and directions for a multi-defendant trial. Use the proper case-management route for any separate-trial application rather than presenting editing as an evidential gateway.

Using the linked practice. Attempt the existing section questions and recall the linked cards before revealing answers. A repeated question link is a revisit, not proof that a different rule has been assessed. After any error, explain the decisive fact and repair the specific section identified at the start of this chapter. In a later mixed problem, check whether changing the relying party, the obtaining method, the available evidence or one condition of a warning changes the answer.

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