Learning Outcomes
By completing this article, you will be able to identify and explain the main principles that govern the admissibility and exclusion of evidence in criminal cases. You will understand key procedures and terms, such as hearsay, confessions, identification evidence, and how improperly obtained evidence can be excluded under statutory and common law powers. You will be equipped to spot and address common exam pitfalls on this topic in SQE2.
SQE2 Syllabus
For SQE2, you are required to understand the rules and procedures for admitting and excluding evidence in criminal proceedings. Focus your revision on:
- the relevance and admissibility of evidence in criminal trials
- the main categories of evidence: direct, circumstantial, hearsay, confession, and identification evidence
- the procedures for objecting to, or applying to exclude, prosecution evidence (notably sections 76 and 78 of PACE 1984)
- the grounds for exclusion of evidence due to unfairness or prejudicial effect
- the rules governing the admissibility and exclusion of hearsay and identification evidence
- the proper handling of contested confessions and improperly obtained evidence.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- Which section of the Police and Criminal Evidence Act 1984 provides the court with discretion to exclude prosecution evidence on grounds of unfairness?
- What is the key test for when hearsay evidence is admissible in criminal proceedings?
- If a confession was obtained after a breach of a PACE code, is it automatically inadmissible? Why or why not?
- What must a judge consider before admitting disputed visual identification evidence under the Turnbull guidelines?
Introduction
The fundamental aim of criminal evidence law is to ensure that only relevant and fair evidence is admitted at trial. Not all relevant evidence is necessarily admissible: statutory and common law rules restrict what can be placed before the fact-finders, be they magistrates or jury. For SQE2, you must be ready to explain, apply, and challenge rules about the admissibility and exclusion of prosecution evidence, especially where fairness and reliability are in issue.
Key Term: admissible evidence
Evidence that the tribunal of fact is permitted to consider for the purpose of proving or disproving a fact in issue at trial.Key Term: exclusion of evidence
A judicial decision (usually on defence application) to prevent the tribunal of fact from hearing evidence, even if relevant, because of how it was obtained or its prejudicial impact.
The Role of Relevance and Admissibility
Not all information helps prove or disprove a disputed issue at trial. Only material with probative value—evidence that makes a fact in issue more or less likely—is relevant. However, for relevant evidence to be admissible, it must not fall under a statutory or common law exclusionary rule.
Key Term: relevance
The tendency of evidence to make a fact in issue more or less probable than it would be without that evidence.
Exclusion of Evidence: Statutory and Common Law Powers
There are key statutory bases for excluding evidence in criminal trials. The most important for SQE2 are:
- Section 76 PACE 1984 (confessions: oppression and unreliability)
- Section 78 PACE 1984 (all prosecution evidence: adverse effect on fairness)
- Judicial discretion at common law (especially on grounds of prejudicial effect).
Key Term: confession
Any statement wholly or partly adverse to the person making it, whether made to a person in authority or not and whether made in words or otherwise.Key Term: hearsay
A statement not made in oral evidence at the trial that is relied upon as evidence of the matter stated.Key Term: identification evidence
Evidence that purports to establish or corroborate the identity of a person relevant to the alleged offence, often from eyewitnesses.
Worked Example 1.1
A suspect’s confession is obtained in police interview after several hours without breaks, and without access to legal advice despite repeated requests. The prosecution wish to rely on the confession at trial. What procedures must the defence follow, and what are the possible grounds for exclusion?
Answer:
The defence should seek to exclude the confession under section 76 PACE 1984 on the ground it was obtained by oppression (due to prolonged questioning and denial of legal advice). If not excluded under s76, an application under s78 may be made due to significant breaches of fairness. The prosecution must prove beyond reasonable doubt that the confession was not obtained by oppression or in circumstances likely to render it unreliable.
Contested Evidence and Exclusion Applications
Exclusion under Section 76 PACE 1984: Confessions
Section 76 PACE 1984 requires courts to exclude confessions if it is shown they were obtained:
- by oppression of the suspect, or
- in consequence of anything said or done likely to render the confession unreliable.
If exclusion is sought, the prosecution must prove beyond reasonable doubt that the confession was not so obtained.
Key Term: oppression
Oppression includes torture, inhuman or degrading treatment, and the use or threat of violence, but may also cover persistent pressure, threats, or denial of fundamental rights.Key Term: unreliability
Circumstances giving rise to a risk that a confession is not true, such as misleading statements, denial of breaks, or refusing access to legal advice.Key Term: voir dire
A "trial within a trial" where the judge alone decides whether a particular piece of evidence should be admitted.
Exclusion under Section 78 PACE 1984: Fairness
Section 78 PACE 1984 gives the court discretion to refuse to admit any prosecution evidence, not just confessions, "if it appears... that, having regard to all the circumstances... 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."
Common triggers for a section 78 application include:
- serious or deliberate breaches of the PACE Codes of Practice (such as unlawful searches, denial of legal advice, or improper identification procedures)
- evidence obtained by trickery, undercover officers, or entrapment (though entrapment is a separate abuse of process issue).
Worked Example 1.2
The police seize a knife during a search but fail to follow rules for conducting house searches. At trial, the defence apply under s78 PACE 1984 to exclude the knife from evidence. What factors will the judge consider?
Answer:
The judge will consider how serious the breach was, whether it was deliberate or reckless, and if admitting the evidence would prejudice the defendant’s right to a fair trial. Courts are cautious about excluding highly probative evidence unless the breach is serious.
Hearsay Evidence in Criminal Proceedings
Hearsay evidence is generally inadmissible unless:
- a statutory exception applies (e.g., witness unavailable due to death, fear, absence, or when a business document is involved)
- the parties agree to its use
- the court finds it in the interests of justice to admit it.
The basis for these rules is found in the Criminal Justice Act 2003.
Identification Evidence and the Turnbull Guidelines
Eyewitness identification is inherently risky and courts require special safeguards. When identification evidence is disputed, judges must follow the Turnbull guidelines:
- Evaluate the quality of the identification.
- Warn the jury of the dangers of mistaken identification.
- Direct the jury to consider factors like observation duration, conditions, distance, and discrepancies.
If the judge considers the identification evidence weak and unsupported, the case may be withdrawn from the jury.
Worked Example 1.3
A victim identifies the suspect in an identification parade. The defence argue that the parade was improperly conducted under the Code D PACE 1984. What should the court do?
Answer:
The judge may consider excluding the identification evidence (often under section 78 PACE 1984) if the breach is serious, and must warn the jury about the possible risks and the necessity of caution in evaluating such evidence.
Challenging Evidence and Procedural Steps
Whenever the defence seek to challenge the admissibility of evidence, they must notify the court, ideally giving reasons in writing in advance, and be prepared for a voir dire if necessary. The prosecution must be given an opportunity to respond.
Exam Warning
On the SQE2, be wary: not all breaches of the PACE Codes or evidence obtained in unfair circumstances will lead to exclusion. Courts must balance the seriousness of the misconduct against the probative value of the evidence. Only significant, deliberate, or prejudicial breaches are likely to result in exclusion.
Revision Tip
Focus revision on the exact legal tests: section 76 PACE for confessions (oppression/unreliability), section 78 PACE for adverse effect on fairness, and the Turnbull criteria for identification evidence. Be prepared to distinguish between mandatory and discretionary exclusion.
Key Point Checklist
This article has covered the following key knowledge points:
- The admissibility of evidence requires both relevance and compliance with statutory and common law rules.
- Confessions must be excluded under s76 PACE if obtained by oppression or unreliability; the prosecution then bears the burden of proof.
- All prosecution evidence can be excluded at the judge’s discretion under s78 PACE 1984 if fairness requires it.
- Hearsay is inadmissible unless specific exceptions or gateways in the Criminal Justice Act 2003 are met.
- Visual identification evidence is subject to special caution and the Turnbull guidelines; defective ID procedures can lead to exclusion or warnings to the jury.
- Not all police failings mean evidence is excluded; the breach must be serious or adverse to fairness.
- Defence challenges to evidence usually require advance notice and may involve a voir dire.
Key Terms and Concepts
- admissible evidence
- exclusion of evidence
- relevance
- confession
- oppression
- unreliability
- voir dire
- hearsay
- identification evidence