Exclusion of evidence under s.78 PACE 1984

Introduction

Section 78 of the Police and Criminal Evidence Act 1984 establishes the court's discretionary power to exclude evidence in criminal proceedings if its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. This basic provision requires a meticulous assessment of all the circumstances in which the evidence was obtained, including potential breaches of police procedures or violations of a defendant's rights. The guiding principle supporting s.78 is the preservation of trial fairness, balancing the need for effective prosecution with the protection of individual liberties.

The Statutory Framework of s.78 PACE 1984

Key Elements of s.78

Section 78 grants courts the authority to exclude prosecution evidence when its admission would compromise the fairness of the trial. This discretion involves several important considerations:

1. Judicial Discretion: Judges possess the power to determine the admissibility of evidence based on fairness. This discretion acts as a safeguard, ensuring that justice is administered impartially.

2. Circumstances of Evidence Acquisition: Courts scrutinize how evidence was obtained, paying close attention to any breaches of legal procedures, such as violations of the PACE Codes of Practice.

3. Fairness to the Defendant: The focus is on whether admitting the evidence would place the defendant at an undue disadvantage or undermine the integrity of the proceedings.

4. Impact on the Proceedings: Consideration is given to how the evidence might influence the jury or magistrates, particularly if it could lead to prejudice or an unjust verdict.

Judicial Discretion in Action

You might ask, how do judges balance the scales when faced with improperly obtained evidence? It's not a simple task. The exercise of discretion under s.78 is similar to a referee ensuring a fair game—the judge must weigh the interests of justice against the rights of the individual. This involves assessing:

1. Probative Value vs. Prejudicial Effect: Even highly relevant evidence may be excluded if obtained improperly, especially if its admission would be unfair to the defendant.

2. Integrity of the Justice System: Admitting evidence acquired through serious misconduct could erode public confidence in the legal system.

3. Public Interest Considerations: While prosecuting offenders is important, it must not come at the expense of fundamental rights and fair trial standards.

Significant Case Law

Understanding how s.78 has been applied in practice requires examining key judicial decisions:

• R v Sang [1980] AC 402: This case established that courts do not have a general discretion to exclude evidence solely because it was obtained illegally or improperly. However, s.78 provides specific discretionary power where the fairness of the trial is at stake.

• R v Mason [1988] 1 WLR 139: Here, the police fabricated evidence to induce a confession. The court excluded the confession under s.78, emphasizing the importance of police integrity and fair dealing.

• R v Khan [1997] AC 558: The use of covert listening devices without proper authorization raised issues under s.78. Although the evidence was admitted, the case highlighted the need to balance effective law enforcement with respect for individual rights.

Practical Application of s.78

Real-World Scenarios

Think about this: What happens when the processes designed to protect individual rights are bypassed? Take Alex's situation. He's arrested on suspicion of burglary and repeatedly asks for a solicitor, but his requests are ignored. Feeling isolated and pressured, he ends up confessing. Should this confession stand in court?

Under s.78, the court has to consider whether admitting the confession would adversely affect the fairness of the proceedings. Denying Alex access to legal counsel is a serious breach of his rights. By excluding the confession, the court not only upholds Alex's rights but also maintains the integrity of the justice system.

Further Illustrations of s.78 in Practice

Here's another scenario: Maria is stopped and searched by the police without reasonable grounds, contrary to PACE Code A. During the search, officers find illegal drugs in her possession. At trial, Maria's defense argues that the evidence should be excluded under s.78 due to the unlawful search.

In this case, the court examines:

1. Violation of Legal Procedures: The lack of reasonable grounds for the search is a clear breach of PACE.

2. Fairness of Admitting the Evidence: Allowing the evidence might be seen as condoning police misconduct.

3. Decision: The court may decide to exclude the evidence to uphold the principle that authorities must comply with legal standards.

This highlights that s.78 not only protects defendants but also serves to regulate police behavior, encouraging compliance with legal procedures.

Common Applications of s.78

• Confessions Obtained Improperly: Coerced or induced confessions can be excluded to prevent unfairness.

• Unlawful Searches: Evidence obtained from a search conducted without a warrant or beyond the scope of legal powers may be excluded.

• Identification Evidence: If identification procedures breach Code D of PACE, the resulting evidence might be excluded.

• Entrapment: Evidence resulting from entrapment may be excluded if it would adversely affect trial fairness.

Intersecting Provisions and Human Rights Considerations

Relationship with Other PACE Provisions

1. Section 76 (Confessions): While s.76 focuses on excluding confessions obtained through oppression or unreliability, s.78 provides a broader discretion to exclude any evidence if its admission would be unfair.

2. Parallel Exclusionary Powers: Section 78 operates alongside other exclusionary rules, ensuring comprehensive protection of defendants' rights.

Human Rights Implications

The interaction between s.78 and human rights isn't just a legal technicality—it's a reflection of society's commitment to justice and fairness. Under the Human Rights Act 1998, courts must consider the European Convention on Human Rights (ECHR):

• Article 6 (Right to a Fair Trial): Ensuring trial fairness is central to both s.78 and Article 6.

• Article 8 (Right to Respect for Private and Family Life): Evidence obtained through breaches of privacy may be excluded under s.78 to uphold this right.

By excluding evidence obtained in violation of these rights, courts affirm that the ends do not justify the means.

Conclusion

The application of s.78 of the Police and Criminal Evidence Act 1984 represents a critical intersection of evidentiary law, judicial discretion, and human rights considerations. At its core, s.78 enables courts to exclude evidence if its admission would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. This discretion requires judges to meticulously assess the circumstances under which evidence was obtained, including any breaches of police procedures or infringements of rights under the European Convention on Human Rights.

For instance, when a confession is obtained after the denial of the right to legal counsel, as protected under PACE Code C and Article 6 of the ECHR, the court must consider excluding it under s.78 to maintain trial fairness. This demonstrates how statutory requirements, judicial discretion, and human rights obligations interact within the legal framework.

Understanding s.78's function is key for comprehending how courts balance the need for effective law enforcement with the imperative of fair trial standards. By examining the statutory provisions, relevant case law such as R v Mason and R v Khan, and considering human rights implications, one gains a comprehensive view of the mechanisms that protect the integrity of legal proceedings.

In summary, s.78 serves as a critical tool within criminal proceedings, ensuring that evidence is admitted only when it does not compromise the fairness of the trial, thereby upholding the basic principles of justice and the rule of law.