3.2 Excluding evidence 3

Question 1

What is the test for excluding evidence under s. 78 PACE?

Answer 1

Section 78(1) PACE
"if it appears to the court that, 

having regard to all the circumstances, including the circumstances under which the evidence was obtained,

the admission of the evidence would have such an adverse effect on [the fairness of] proceedings

that the court ought not to admit it.”

Question 2

What provision is most commonly used to exclude evidence?

Answer 2

Section 78 PACE

Question 3

What is Section 78 PACE fundamentally concerned with?

Answer 3

Fairness

Question 4

What is the essence of unfairness in admitting evidence?

Answer 4

R v Quinn [1990] Crim.L.R. 581
“if, for example, one side is allowed to adduce relevant evidence which, for one reason or another, the other side cannot properly challenge or meet”

Question 5

What circumstances of obtaining evidence can be make proceedings unfair?

Answer 5

Evidence that was obtained obtained unfairly, improperly or unlawfully, eg, in breach of the ECHR or PACE (or the PACE Codes of Practice).

Question 6

Can irregularly obtained evidence always be excluded for unfairness?

Answer 6

Charles v CPS [2009] EWHC 3521
No. But breaches of the Codes of Practice must be taken into account.
Applying Section 78 the court is not concerned with marking its disapproval of police conduct, or otherwise seeking to punish the prosecution, it is simply concerned with whether fairness dictates that the evidence should be excluded in the circumstances.

Question 7

Under which Section of PACE are the Codes of Practice issued?

Answer 7

Section 66 PACE

Question 8

What is the role of the Codes of Practice in excluding evidence?

Answer 8

Section 67(11) PACE
The Codes of Practice are admissible in evidence so the defendant can rely on them to argue that evidence obtained in breach of the COP would make the trial unfair.

Question 9

How many Codes of Practice are there?

Answer 9

Eight (A-H)

Question 10

Code A

Answer 10

Stop and search

Question 11

Code B

Answer 11

Entry, search and seizure

Question 12

Code C

Answer 12

Detention, Treatment and Questioning of Non-Terrorist Suspects

Question 13

Code D

Answer 13

Identification

Question 14

Code E

Answer 14

Audio Recordings of Interviews

Question 15

Code F

Answer 15

Visual Recording of Interviews with Sound

Question 16

Code G

Answer 16

Arrest

Question 17

Code H

Answer 17

Detention, Treatment and Questioning of Terrorism Suspects

Question 18

Name five breaches of the Codes of Practice that can lead to exclusion under s. 78 PACE

Answer 18

1. the “fundamental right” of access to legal advice has been improperly denied;
2. where waiver of the right of access to legal advice was not voluntary, informed or unequivocal;
3. where there has been a failure to caution a suspect before questioning;
4. where an appropriate adult has not been provided for a youth, mentally disordered or mentally vulnerable suspect;
5. where identification procedures have not been followed.

Question 19

What is the test for a breach of the PACE Codes to lead to exclusion under s.78 PACE?

Answer 19

R v Keenan (1990) 90 Cr App R 1
Not every breach or combination of breaches of the codes will justify the exclusion of interview evidence under section 76 or section 78 … They must be significant and substantial.

Question 20

Can the courts exclude evidence in order to punish the police or prosecution for procedural irregularities?

Answer 20

R v Delaney, The Times, 30 August 1988
It is no part of the duty of the court to rule a statement inadmissible simply in order to punish the police for failure to observe the Codes of Practice. But if the breaches are “significant and substantial” … it makes good sense to exclude them.’

Question 21

What is the test for assessing whether police misconduct should lead to evidence being excluded?

Answer 21

R v Keenan (1990) 90 Cr App R 1)
Was the breach significant and substantial?

R v Roberts [1997] 1 Cr App R 227
whether, having regard to the circumstances of the case as a whole, the conduct of the police, either wittingly or unwittingly, led to unfairness or injustice

Question 22

What is the most important thing to bear in mind when deciding whether a breach of procedure should lead to evidence being excluded under s.78?

Answer 22

Not the seriousness of the breach per se, but its effect on fairness.

[The position is therefore that the more significant and substantial the breach, the more likely it is to result in unfairness and, thus, exclusion. Conversely, even major breaches will not lead to exclusion if the court reaches the view that no unfairness was caused in the circumstances.]

Question 23

When will the Court of Appeal overrule a judge’s decision to exclude evidence?

Answer 23

R v Quinn [1995] 1 Cr App R 480
Only where it is perverse, ie, no reasonable judge having heard the evidence could have reached the conclusion that he did.

Question 24

When can a s.78 application to exclude be made?

Answer 24

1. before the trial;
2. at the commencement of the trial; or
3. just prior to the prosecution seeking to admit the evidence which the defence wish to be excluded.

Question 25

How will the judge deal with a s.78 application?

Answer 25

Where the prosecution case would be fatally weakened, most likely at a pre-trial hearing or at the start of the trial.

For less significant evidence, during the trial.

Question 26

What happens if the defence wishes to exclude evidence but the judge has not yet heard the application?

Answer 26

The prosecution should avoid making any reference to the disputed evidence in the opening speech.

Question 27

When should a s.78 application be made?

Answer 27

Before the impugned evidence is adduced.

Question 28

In what document should the defendant argue for a s.78 exclusion?

Answer 28

Section 6A(1)(d) Criminal Procedure and Investigations Act 1996
In the defence statement along with any authorities relied on for the point of law.

In practice, often both sides will draw up skeleton arguments.

Question 29

When does the judge usually give directions as to when a s.78 application will be heard?

Answer 29

At the PTPH in the Crown Court or

when dealing with case management at the Magistrates Court

Question 30

Where does the burden of proof lie in s.78 applications?

Answer 30

The prosecution must prove their version of the facts to the criminal standard, e.g., that the police did not breach the PACE Codes.

However, it is for the defence to convince the judge that those facts once proven would lead to such unfairness that she should not admit the impugned evidence.

Question 31

Who addresses the court first in a s.78 application hearing?

Answer 31

The defendant’s counsel - because the defendant is making the application.

Question 32

What is a hearing on the admissibility of evidence known as?

Answer 32

A “trial on the voir dire”

or simply a “voir dire”

Question 33

When should challenges to confessions (ss. 76 and 78) be heard?

Answer 33

As a preliminary issue - it is likely to be the main evidence against the defendant and its (in)admissibility is essential for her to plan her defence.

Question 34

Who can apply for a s.78 exclusion?

Answer 34

Only the defendant.

Question 35

Against whose evidence can a s.78 exclusion be sought?

Answer 35

Only the prosecution’s. (eg., not a co-defendant’s.)