s78 exclusion of evidence

Question 1

what is the legislation that underpins this?

Answer 1

section 78 Police and Criminal Evidence Act 1984

Question 2

give an explanation of s78

Answer 2

The court has discretion to exclude P evidence if, having regard to all the circumstances including those in which the evidence was obtained, its admission would have an adverse effect on the fairness of the proceedings that the court ought not to admit it

Question 3

if D makes an application on the basis that there has been a breach of COP/PACE, when might the court exclude the evidence?

Answer 3

the court are likely to only grant the application if the breach is significant & substantial

Question 4

explain when a breach of COP/PACE is likely to be significant/substantial

give an example

Answer 4

if the breach doesn’t affect the reliability of the evidence the court is unlikely to exclude it

e.g. drugs found in unlawful search. The unlawful actions of the police didn’t bring about the evidence - the drugs were already there

Question 5

how do the court assess whether the evidence should be admitted?

Answer 5

they conduct a balancing acting by weighing up the probative value versus the prejudicial effect. If the probative value exceeds the prejudice, it will be admitted

Question 6

what is meant by ‘probative value’?

Answer 6

evidence is of probative value where it helps to prove an issue one way or another