1.4 Excluding evidence Flashcards
What are the three questions to be asked when considering whether evidence can be admitted?
- Is the evidence relevant to a fact in issue?
- Is there an exclusionary rule? (e.g., ss.76 & 78 PACE)
- Is there an inclusionary rule? (e.g., bad character)
What is the general exclusionary rule?
Section 78(1) PACE In any proceedings the court may refuse to allow evidence ... 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.
Where is the general exclusionary rule set out?
Section 78 PACE
Generally, how serious must a breach of PACE Codes be in order to satisfy the fairness test in s.78 PACE?
Walsh (1989) 91 Cr App R 161
where the breach is “significant and substantial… then prima facie at least the standards of fairness set by Parliament have not been met.”
What is the common law test for excluding evidence?
Noor Mohamed v The King [1949] AC 182
Where the probative value of the evidence is outweighed by its prejudicial effect.
Where is the classic statement of the common law exclusionary discretion to be found?
Noor Mohamed v The King [1949] AC 182
Whose evidence can be excluded under s.78 PACE?
Section 78 PACE
Only evidence “…on which the prosecution proposes to rely…”
Whose evidence can be excluded under the common law power?
Lobhan v The Queen [1995] 2 All ER 602
1. Only the prosecution’s evidence can be excluded under the common law power.
- There is no power to exclude the exculpatory part of a mixed statement.
On what grounds will the appeal court interfere with the trial court’s common law discretion to exclude?
Cook [1959] 2 QB 340
Not unless
1. the judge failed to even consider exercising discretion, or
2. the judge erred in principle or there is no material on which he could properly have arrived at his decision.
