Evidence - Excluding Evidence

Question 1

What is the test under s.78 PACE 1984?

Answer 1

The court may exclude prosecution evidence if admitting it would have such an adverse effect on fairness that it ought not to be admitted.

Question 2

What is the first question to ask when considering admissibility of evidence?

Answer 2

Is the evidence relevant?

• If not relevant, it is inadmissible.
• If relevant, proceed to consider special character and exclusionary rules.

Question 3

Can s.78 PACE be used to exclude defence or co-defendant evidence?

Answer 3

No — it only applies to prosecution evidence.

Question 4

What types of misconduct might lead to exclusion under s.78 PACE?

Answer 4

• Denial of access to legal advice
• Interviewing without caution
• Lack of appropriate adult for youth/vulnerable suspect
• Breach of PACE Codes of Practice

Question 5

What is a ‘voir dire’ in a s.78 application?

Answer 5

A mini-trial (in Crown Court, without jury) to resolve disputed facts relevant to the application to exclude evidence.

Question 6

What is the common law exclusionary discretion

Answer 6

Allows courts to exclude prosecution evidence if its prejudicial effect outweighs its probative value. Still applies alongside s.78.

Question 7

What is an application to dismiss?

Answer 7

A pre-trial application in the Crown Court. The judge must dismiss charges if the evidence is insufficient to allow a proper conviction.

Question 8

When can a submission of no case to answer be made?

Answer 8

After the prosecution case, during trial. If successful, D is acquitted. Based on the Galbraith test.

Question 9

What are the two limbs of Galbraith?

Answer 9

(1) No evidence to support charge
(2) Evidence is so weak, no jury could properly convict
If either applies, the case is stopped.

Question 10

What is an abuse of process application?

Answer 10

A defence application to stay proceedings, either because:

1. D cannot have a fair trial, or
2. Continuing the case would offend justice or undermine public confidence

Question 11

What are examples of abuse of process grounds?

Answer 11

• Entrapment
• Promise not to prosecute
• Destruction of evidence
• Manipulation of procedure
• Tactical/prolonged delay causing prejudice

Question 12

What must the defence prove in an abuse of process application?

Answer 12

Abuse must be proven on the balance of probabilities. If successful, the case is permanently stayed — not a “not guilty” verdict, but no conviction.

Question 13

What types of evidence require an inclusionary rule before being admitted?

Answer 13

Evidence of a special character, such as:

• Hearsay
• Bad character evidence
  These require a statutory inclusionary rule to be admissible.

Question 14

What are the five stages in assessing admissibility of evidence?

Answer 14

1. Is the evidence relevant?
2. Is it of special character (requiring inclusion)?
3. Does an inclusionary rule apply?
4. Is there an exclusionary provision within the inclusionary statute?
5. Does an exclusionary discretion apply (s.78 or common law)?

Question 15

What is the role of inclusionary rules in evidence law?

Answer 15

To permit certain evidence that would otherwise be inadmissible. E.g. bad character evidence may be allowed under specific statutory grounds.

Question 16

What is the role of exclusionary rules in evidence law?

Answer 16

To prevent unfairly obtained or prejudicial evidence from being admitted, even if relevant. Governed by s.78 PACE or common law.

Question 17

What does s.78(1) PACE allow the court to do?

Answer 17

To exclude prosecution evidence if its admission would have such an adverse effect on the fairness of proceedings that it ought not to be admitted.

Question 18

Must breaches of PACE always result in exclusion under s.78?

Answer 18

No. Only significant and substantial breaches may justify exclusion. The real test is the effect on trial fairness.

Question 19

What is the legal test for an application to dismiss or a no case to answer?

Answer 19

Whether, taking the evidence at its highest, a properly directed jury could convict

Question 20

What is the common law discretion to exclude evidence?

Answer 20

Courts may exclude prosecution evidence where its prejudicial effect outweighs its probative value — even if PACE rules are followed.

Question 21

When might the common law exclusion apply where s.78 doesn’t?

Answer 21

E.g., eavesdropping not covered by PACE — evidence may still be excluded if it is misleading, low-quality, or prejudicial.

Question 22

When should a s.78 application be made?

Answer 22

• Before trial,
• At the start of trial, or
• Just before the evidence is adduced.
  It should be raised early to avoid references to disputed evidence.

Question 23

What happens in a voir dire hearing for a s.78 application?

Answer 23

• Held without the jury
• Judge hears evidence from both sides
• Judge must be sure beyond reasonable doubt of the prosecution’s facts if disputed
• If fairness is compromised, the evidence is excluded