Principles and procedures to admit and exclude evidence - Exclusion of evidence under s.78 PACE 1984

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Overview

Section 78 of the Police and Criminal Evidence Act (PACE) 1984 plays a vital role in criminal evidence law, allowing courts to reject evidence that may compromise trial fairness. Understanding s.78 is important for SQE1 FLK2 candidates as it relates to justice principles, procedural integrity, and the balance between prosecution efforts and defendants' rights. This article explores the interpretation and application of s.78, equipping future solicitors with the knowledge needed for exams and practice.

The Statutory Framework of s.78 PACE 1984

Section 78 of PACE 1984 states:

"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."

Key Elements of s.78

  1. Judicial Discretion: Gives judges the authority to exclude evidence, highlighting their role in protecting procedural fairness.

  2. Contextual Consideration: Requires assessing the evidence acquisition context comprehensively.

  3. Fairness Test: Focuses on whether including the evidence would significantly harm trial fairness.

  4. Forward-Looking: Considers the potential impact on fairness, beyond how the evidence was gathered.

The Judicial Approach to s.78

The Balancing Act

When applying s.78, courts weigh various factors:

  1. Probative Value: The evidence's strength and relevance.
  2. Prejudicial Effect: The risk of unfair influence on the decision-makers.
  3. Procedural Integrity: How admitting evidence might affect the justice system's integrity.
  4. Public Interest: Wider concerns of justice and crime prevention.

The 'Fairness Test'

The notion of fairness under s.78 involves several aspects:

  1. Procedural Fairness: Ensures evidence was obtained lawfully, adhering to PACE codes.
  2. Substantive Fairness: Evaluates the evidence's reliability and quality.
  3. Overall Fairness: Considers wider impacts on the justice system's integrity.

Case Law Interpretation

Key cases shaping s.78 include:

  1. R v Sang [1980] AC 402: Highlights judicial discretion to exclude evidence if prejudice outweighs value.

  2. R v Mason [1988] 1 WLR 139: Evidence obtained by deception may be excluded under s.78.

  3. R v Khan [1997] AC 558: Evidence breaching privacy rights requires case-by-case analysis under s.78.

  4. R v P [2002] 1 AC 146: Confirms no automatic exclusion rule for breach of PACE codes.

Practical Application of s.78

Scenario Analysis

Example scenario:

During a burglary investigation, police search a suspect's home without a valid warrant and find stolen items. The prosecution seeks to use this evidence at trial.

Application of s.78:

  1. Obtaining Evidence: Assess the seriousness of searching without a warrant and the officers' intent.

  2. Evidence Reliability: Determine the reliability of the found items.

  3. Fairness: Decide if including the evidence compromises the defendant’s right to a fair trial.

  4. Public Interest: Balance the need for justice with justice system integrity.

  5. Potential Remedies: Consider other responses, such as disciplining officers, alongside excluding evidence.

Common Scenarios for s.78

  1. Confessions: When obtained through coercion or unreliable circumstances.

  2. Identification Evidence: If it doesn’t comply with PACE's Code D.

  3. Covert Surveillance: If done without proper authorization.

  4. Entrapment: When law enforcement induces crime.

Intersecting Provisions and Related Issues

Relationship with Other PACE Provisions

  1. Section 76 (Confessions): s.76 provides specific grounds for confessions, but s.78 offers broader discretion.

  2. Section 82(3): Ensures s.78 doesn't restrict other court powers to exclude evidence.

Human Rights Considerations

s.78 must align with the Human Rights Act 1998:

  1. Article 6 ECHR (Right to a Fair Trial): s.78 acts as a safeguard for this right.

  2. Article 8 ECHR (Right to Privacy): Evidence breaching privacy rights is scrutinized under s.78.

Analysis and Exam Considerations

Strengths of s.78

  1. Adaptability: Courts can address varied situations and evolving techniques.
  2. Focus on Fairness: Ensures proceedings remain fair.
  3. Deterrence: Deters wrongful conduct by authorities.

Criticisms and Limitations

  1. Inconsistency: Discretion may lead to differing decisions in similar cases.
  2. Lack of Clarity: Broad language provides limited direction for lower courts.
  3. Complex Balancing: Weighing public interest against procedural integrity can be challenging.

Exam-Relevant Analytical Approaches

  1. Fact Analysis: Identify elements that might trigger s.78.
  2. Factor Evaluation: Weigh different factors as a court would.
  3. Case Law Usage: Apply precedents to specific contexts.
  4. Human Rights Consideration: Integrate relevant ECHR aspects into s.78 discussions.

Conclusion

Section 78 of PACE 1984 serves as an essential tool for ensuring fairness in criminal proceedings, balancing competing justice interests. For SQE1 FLK2 candidates, understanding s.78 involves appreciating its statutory framework, case law developments, and analytical skills for diverse scenarios. As future solicitors, applying s.78's complexities will be vital in protecting clients' rights and upholding the criminal justice system's integrity.

Key Points Summary

  1. S.78 PACE 1984 allows courts to exclude evidence that could impair trial fairness.
  2. Application involves balancing evidence value, prejudice risk, procedural integrity, and public interest.
  3. The 'fairness test' considers different aspects of fairness.
  4. Key cases like R v Sang, R v Mason, and R v Khan provide understanding into s.78's application.