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A man is arrested for burglary. He requests his usual solicitor to represent him, but the solicitor is not available. The man agrees to be interviewed under caution (‘the Interview’) without legal representation.
The man admits the burglary during the Interview and is charged with the burglary. He subsequently instructs his usual solicitor and pleads not guilty at court. The man tells his solicitor that he only admitted the burglary during the Interview because the interviewing officer told him that the evidence against him is stronger than it is. The interviewing officer also said that the man was more likely to be granted bail by the custody officer if he admitted the offence.
The solicitor considers whether an application can be made to exclude the man’s confession in the Interview from evidence in his trial. The solicitor considers making an application under s.76 PACE 1984 on the basis that the confession was obtained as a result of the interviewing officer’s statements which were likely, in the circumstances existing at the time, to render any confession made by the man unreliable.
If the application is made, which of the following best describes who, if anyone, would bear the burden of proof and to what standard?
A. The prosecution must prove beyond reasonable doubt that the confession was not obtained as alleged in order for the confession to be admitted in evidence.
B. The prosecution must prove on the balance of probabilities that the confession was not obtained as alleged in order for the confession to be admitted in evidence.
C. The defence must prove beyond reasonable doubt that the confession was obtained as alleged in order for the confession to be excluded from evidence.
D. The defence must prove on the balance of probabilities that the confession was obtained as alleged in order for the confession to be excluded from evidence.
E. No one bears the burden of proof. The defence must only raise that the confession was obtained as alleged and the court will have a discretion whether to exclude the confession from evidence.
A - The prosecution must prove beyond reasonable doubt that the confession was not obtained as alleged in order for the confession to be admitted in evidence.
Candidates who answered correctly: 44%
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