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Flashcards in Evidence SG12 Deck (12):
1

MCQ1 Which of the following statements best reflects the exclusionary power under s78 PACE 1984?


a)Prosecution evidence may be excluded if, 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 proceedings that it ought not to be admitted.
b) Defence evidence may be excluded if, 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 proceedings that it ought not to be admitted.
c) Prosecution evidence may be excluded if its prejudicial effect would outweigh its probative value.
d) Evidence of a confession must be excluded if the prosecution cannot satisfy the court so that it (the court) is sure that the confession was not obtained by oppression or in circumstances likely to render it unreliable.

A) CORRECT.
s.78 PACE 1984
In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given 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.
B) Incorrect. S.78 relates to prosecution evidence only.
C) Incorrect. This statement identifies the common law power to exclude prosecution evidence. See Sang [1980] AC 402.
D) Incorrect. This statement outlines the exclusionary power under s76 PACE 1984.

2

Section 76(2) PACE 1984

If, in any proceedings where the prosecution proposes to give evidence a confession by an accused person, it is represented to the court that the confession was or may have been obtained-
(a) by oppression of the person who made it ; or
(b) In consequence of anything said or done which was likely in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof,
the court shall not allow the confession to be given in evidence against him except insofar as the prosecution proves beyond a reasonable doubt that the confession (notwithstanding that it may be true) was not so obtained.

3

MCQ2 At which stage during a summary trial should the Magistrates hear a defence application to exclude evidence under s78 PACE 1984?

The application must be heard before the prosecution call the disputed evidence.

There is no general rule governing when to make the application, the application can be heard at any time during the trial.

The defendant is entitled to have the application dealt with as a preliminary issue at a voir dire.

The application should be heard at the Plea and Trial Preparation Hearing.

A)Incorrect: The application must be heard before the prosecution call the disputed evidence if the trial were to take place in the Crown Court.
B)CORRECT: the magistrates have a discretion was to when they hear argument under s78 PACE 1984 and there is no general rule as to when they should determine admissibility. (F v Chief Constable of Kent [1982] Crim LR 682).
C)Incorrect: the defendant is not entitled to have submissions under s78 dealt with as a preliminary issue at a voir dire. (Vel v Chief Constable of N. Wales (1987) 151 JP 150. However, were the application to exclude made under s76, a voir dire must be held. (Liverpool Juvenile Court ex p R [1988] QB 1).
D)Incorrect: there are no PTPHs in the magistrates court. Were the case before the Crown Court, a defence intention to make an application to exclude evidence should be flagged at the PTPH.

4

Key Q 1

s.82 PACE


s.82 PACE

“A confession includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not , and whether made in words or otherwise”

5

Key Q 2

s.76(2) PACE 1984

s.76(2) PACE 1984
If, in any proceedings where the prosecution proposes to give evidence a confession by an accused person, it is represented to the court that the confession was or may have been obtained-
(a) by oppression of the person who made it ; or
(b) In consequence of anything said or done which was likely in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence against him except insofar as the prosecution proves beyond a reasonable doubt that the confession (notwithstanding that it may be true) was not so obtained.

6

Key Q 3

s.78 PACE 1984

s.78 PACE 1984
(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given 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.

7

Key Q 4

s.76A PACE 1984


In any proceedings a confession made by an accused person may be given in evidence for another person charged in the same proceedings (a co-accused) in so far as it is relevant to any matter in issue in the proceedings …
If, in any proceedings where a co-accused proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained
(a) by oppression of the person who made it or (b) in consequence of anything said or done…
the court shall not allow …. he confession to be given in evidence for the co-accused except in so far as it proved to court on the balance of probabilities that the confession… was not so obtained.

8

Where an accused's confession incriminates a co-accused, is the confession admissible by the prosecution against the co-accused?‘



No. Under s 76(1), the confession is only admissible by the prosecution against the person who makes it; so it is not admissible against the co-accused because s/he is not the person who makes it. Of course, this is different from the situation where the confession is helpful rather than against the co-accused. In this situation, the confession is admissible for the co-accused either when it is introduced by the prosecution or the co-accused, provided there is no issue of oppression or unreliability arising which has not been disproved by the prosecution or co-accused to the applicable standard.

9

Key Q 5

S.76(4) and (5) PACE 1984

S.76(4) and (5) PACE 1984
The fact that a confession is wholly or partly excluded in pursuance of this section shall not affect the admissibility in evidence –
(a) of any facts discovered as a result of the confession
(5) Evidence that a fact to which this subsection applies was discovered as a result of a statement made by an accused person shall not be admissible ….

10

Key Q 1 key points

Refusal of access to solicitor breach of PACE 1984, s58(8); see also Code C6.5;
Lies- R v Mason [1988] 1 WLR 139;
Admissibility of an accused’s confession by co-accused- PACE 1984, s.76A. Mirror s.76, but standard of proof is the balance of probabilities.
Admissibility of evidence discovered in consequence of inadmissible confessions - s76(4) and s76A(4) PACE 1984

11

2 key points

Failure to caution a breach of Code C10.1;
Failure to record, time and put unsolicited comments a breach of c11.13;
Application may be made under PACE 1984, s.78
Conversation and comments amount to a confession under PACE 1984, s.82(1) and application may be made under s.76(2)(b)

12

Section 78 PACE 1984: applies to any prosecution evidence


Section 76(2) PACE 1984: use to exclude confessions only:

Section 78 PACE 1984: applies to any prosecution evidence
Breaches of Codes or statutes or police conduct may provide a basis
Must establish that admission adversely affects fairness of trial and should consider how evidence was obtained in making assessment


Section 76(2) PACE 1984: use to exclude confessions only:
Breaches of the Codes or statutes provide a basis
Impropriety not required
Burden on prosecution to disprove oppression or something said or done likely to render confession unreliable. Standard, ‘sure’.
Section 76A- confession adduced by co-accused. Test as for s.76, but standard is balance of probabilities