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51 Cards in this Set
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s.78 Police and Criminal Evidence Act 1984 (PACE) |
Courts may in proceedings, refuse to allow evidence on which the orisecution proposes to rely to be given - if it appears to the court that such evidence would have an adverse effect on the fairness of the proceedings that the court ought not to admit it. |
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Relation with s.78 - The Common Law position |
Leatham (1861) - “It matters not how you get it; if you steal it, it would be admissible in evidence” Ensures that any and all evidence that’s needed to carry out justice should be used and not wasted - but problems with policy arise. |
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Probative Value test: |
Christie (1914) - added a discretion to the Leatham judgment i.e. if the prejudicial effect outweights the probative value of evidence, it ought to be excluded. Adds a check and balance |
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Resorted to by the defence |
Unsurprisingly, it is often used as a last resort at times for the defence to argue it to be excluded - analysis is required. |
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R v Alladice (1988) |
s.78 application extends to evidence that are already regulated by other statutory provisions - e.g. s.76 that specifically covers confessions |
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Who proves the unfairness? |
Cooke (1995) - in line with the principle “he who asserts must prove,” the defendant must prove the evidence was unfairly obtained Stagg (1994) - it was argued that the prosecution should be the one to prove that the evidence was obtained fairly. |
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R v Governor of Brixton Prison, ex parte Saifi (2000) |
It was doubted if there was an issue of who bears the burden of proof at all. It could be that it’s actually just a balancing act between prosecution and defence. s.78 does not require a fact to be proven - the discretion lies entirely with the court. |
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Voir Dire |
A separate “mini-trial” held outside the hearing of the jury to decide whether the evidence can be admitted or not. Appeal courts are unlikely to interfere with the trial judge’s discretion unless Wednesbury unfairness is present. |
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Relation with s.78 - The Common Law position |
Leatham (1861) Crampton J: “It matters not how you get it; if you steal it, it would be admissible in evidence” Ensures that any and all evidence that’s needed to carry out justice should be used and not wasted - but problems with policy arise. |
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Probative Value test: |
Christie (1914) - added a discretion to the Leatham judgment i.e. if the prejudicial effect outweights the probative value of evidence, it ought to be excluded. Adds a check and balance |
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R v Sang (1980) HoL |
Lord Diplock finds no general discretion - unless the evidence was gained by oppression is akin to a confession thus a breach of privilege against self-incrimination e.g. Jeffrey v Black (1978) & Calis v Gunn (1964) Simmons VC reiterates Christie |
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Jeffrey v Black (1973) |
Police found cannibis in defendant’s house - alleged that the defendant had not consented to the police searching his premises Held: evidence obtained in an irregular matter is not, in itself, sufficient grounds to exclude the evidence in favour of D. |
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Common law discretion codified - s.82(3) PACE 1984 |
Nothing in this part of the act shall prejudice any power of the court to exclude evidence at its discretion. |
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Two Schools of Thought: |
s.78 - wider discretion per R v Horseferry Road Magistrates ex parte Bennett (1964) s.78 - same discretion as the common law - per Chalkley and Jeffries |
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Wider discretion R v Horseferry Road Magistrates’ Court exparte Bennett (1964) |
Exclusion is dependent on the adverse effect on fairness of the proceedings - rather than just the realibility of the evidence itself. Approach was applied in: Looseley (HL) |
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Narrow view: R v Chalkley and Jeffries |
s.78 merely reinstates the common law discretion i.e. focused more on the reliability of the evidence rather than the effect on fairness of proceedings. |
s.78 merely reinstates the common law discretion i.e. focused more on the reliability of the evidence rather than the effect on fairness of proceedings.
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Ian Dennis - criticized Chalkley |
Evidence could still be excluded if they have been obtained by contempt of “process values” - “apparently reliable evidence may need to be excluded if it carries significant risks of impairing the moral authority of the verdict.” |
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Chalkley approach fails to consider: |
Smurthwaite; Gill - Taylor LJ lists some factors (degree of impropriety in obtaining evidence, police enticing defendant to commit the offence, police abusing their role) Fulling - if the confession was obtained by oppression according to it’s dictionary definition |
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Favour towards the wider interpretation: |
s.78 focuses on “unfairness of proceedings” as a criterion. The method of obtaining evidence is taken into account in deciding “fairness.” Nothing in the section limits it to contempt of self-incrimination Fulling (1987) - codification in PACE should be interpreted free of CL restrictions Khan (Sultan) (1997) - Art.8 breach was a relevant consideration (HoL)
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R v Looseley (2001) |
Several suggestions in Law Lords’ speeches suggesting wide discretion - e.g. Lord Hoffman (Lord Hutton agreed) - an application to exclude evidence under s.78(1) may in substance be a belated application for a stay of proceedings - thus should be treated in according to those principles appropriate to granting stay. (i.e. accounts for breach of process values) |
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R v Looseley (2001) |
Several suggestions in Law Lords’ speeches suggesting wide discretion e.g. Lord Hoffman (Lord Hutton agreed) - an application to exclude evidence under s.78(1) may in substance be a belated application for a stay of proceedings - thus should be treated and according to those principles appropriate to granting stay. (i.e. accounts for breach of process values) |
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s.78 supercedes CL |
Prejudicial and probative discretion can be accounted for - provides a framework for excluding unfairly obtained evidence. Preserves check & balance on police procedures and supports morality. |
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Courts emphasised - each case is to be decided by its own facts. |
Keenan (1990) - Hodgson J Jelen and Katz (1989) - Auld J Sanghera (2001) - Woolf LJ |
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R v Sanghera (2001) |
Police filled out search authorisation form and ticked “search with consent.” No consent was obtained and the search found a large sum of cash - D charged for theft. Held: J had not erred in not excluding the evidence - no affect on reliability. No evidence that police acted mala fide, nor any that D would have not consented. |
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Contrast: R v Keenan (1990) |
Unrecorded interview to obtained additional evidence - not recorded and no reason was given (breach of Code) CoA: J erred in concluding that such breaches of code could be cured by D giving his version of the interview at the witness box. Remain silent = unfairly penalised Provide his side = his character is put in issue if he attacks police for concocting evidence. |
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Contrast: R v Keenan (1990) |
Interview for additional information - not recorded and no reason was given (breach of Code) CoA: J erred in concluding that such breaches of code could be cured by D giving his version of the interview at the witness box. Remain silent = unfairly penalised Provide his side = his character is put in issue if he attacks police for concocting evidence. |
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Khan (Sultan) (1997) |
Lord Nolan expressed: Significance of a breach of relevant law or convention is determined by its effect on the fairness of the proceedings rather than unlawfulness or irregularity. |
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Khan (Sultan) (1997) |
Concerned the admissibility of evidence obtained by covert listening device. Argued to have breached Art.8 Lord Nolan expressed: Significance of a breach of relevant law or convention is determined by its effect on the fairness of the proceedings rather than unlawfulness or irregularity. |
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Khan v UK (2001) |
Found there was no breach of Fair Trial (Art 6) despite the evidence being obtained by invasion of privacy (Art 8). ECtHR satisfied that domestic court adequately assessed the effection of admission on the trial Proceedings as a whole, not unfair. |
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Loucaides J in Khan v UK (2001) |
Observed it to be inconceivable how a trial could be deemed fair under Art.6 when the evidence itself and the defendant’s guilt was obtained and proven, by the breach of articles meant to instill fairness. |
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An important factor: Bad Faith “Mala fide” |
If mala fide is shown, it is very likely the courts are to rule the evidence is inadmissible or adverse to the fairness of proceedings. R v Walsh - bad faith might may make substantial or significant a breach of Code when it otherwise would not have been. |
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Examples of bad faith: |
R v Mason - confession was enticed by lying to the interviewee that there was other stronger evidence to prove his guilt. Matto v DPP- knowingly trespassed on the D’s property to obtain his breath test. Found to be oppressive and acted mala fide - knowingly in excess of their powers |
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Alladice (1988) |
Courts are willing to exclude any confession if the police had acted in bad faith If they acted in good faith, courts still need to consider if there are any adverse effects on the fairness of proceedings. |
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Breaches of Codes of Practice |
“Substantial and significant” are questions of fact e.g. : Okafor (1994) - failure to caution, to remind the right to legal advice and make a contemporaneous record of interview - examples of substantial breaches |
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Walsh, Seville J Good Faith is not an excuse |
Refused access of solicitor, failed to record interview (and let interviewee review it) “Breaches which are themselves significant and substantial are not rendered otherwise by good faith of the officers concerned.” |
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Ryo Ogiso, “The Exclusionary Rule in Criminal Procedure: a comparative study” 2001 |
Finding truth, punishing criminals and acquitting the innocent are the primary concern of criminal trials If practice exceeds the power vested by constitutional law, or the practice breaches fundamental principles designed to protect human rights, the prosecution must not enjoy the fruit of that practice. |
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Japanese Jurisdiction |
Focuses on a deterrent approach - to avoid illegal conduct and illegally obtained evidence. Courts focus more on the seriousness of the illegality rather than the adverse effect of fairness or reliability. Accounting all circumstances including seriousness of offence and seriousness of illegality, the effect of exclusion. |
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Japanese Jurisdiction - Ryo Ogiso |
Focuses on a deterrent approach - to avoid illegal conduct and illegally obtained evidence. Courts focus more on the seriousness of the illegality rather than the adverse effect of fairness or reliability. Accounting all circumstances including seriousness of offence and seriousness of illegality, the effect of exclusion. |
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Reliability still a factor: Cooke (1995) |
Accused charged for two rape allegations - hair sample was obtained while under arrest for second offence (assured only used for second offence) Found DNA matched first offence also - accused later threatened with use of force to obtain another hair sample. DNA profile was strong evidence - fairness of public good is also necessary |
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Reliability still a factor: Cooke (1995) |
Accused charged for two rape allegations - hair sample was obtained while under arrest for second offence (assured only used for second offence) Found DNA matched first offence also - accused was later threatened with use of force to obtain another hair sample. DNA profile was strong evidence - fairness of public good is also necessary |
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R v Cadetta (1995) |
Drug courier intercepted and forced to call the accused - conversation was recorded and transcript presented as evidence Held: the mere fact that the evidence was obtained by subterfuge did not necessarily lead to exclusion - in all circumstances, all was fair in light of the need to tackle oganized drug crimes. |
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R v Cadetta (1995) |
Drug courier intercepted and forced to call the accused - conversation was recorded and transcript presented as evidence Held: the mere fact that the evidence was obtained by subterfuge did not necessarily lead to exclusion - all was fair in light of the need to tackle oganized drug crimes. |
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Overall: |
Trials are not just about reliably convicting the guilty and ensuring the protection of the innocent from conviction There is also an important judicial responsibility to main the moral integrity of the process. |
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An issue of entrapment: Police luring criminals |
Test is to see whether the defendant would have acted the way he did anyways regardless of police intervention. |
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An issue of entrapment: Police luring criminals |
Test is to see whether the defendant would have acted the way he did anyways regardless of police intervention. |
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R v Williams and O’Hare |
The officers had left a van with fake cigarettes unsecured - Defendant had come and stolen the vehicle. It was not entrapment. |
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An issue of entrapment: Police luring criminals |
Test is to see whether the defendant would have acted the way he did anyways regardless of police intervention. |
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R v Williams and O’Hare |
The officers had left a van with fake cigarettes unsecured - Defendant had come and stolen the vehicle. It was not entrapment. |
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Another case: |
Officers in plain clothes hailed a taxi which was licenseless. It was not entrapment as the taxi driver would have acted the same way with other passengers. It would be different if the taxi was called expressly to pick the officers up. |
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R v Loosely, House of Lords |
A stay is granted if the misconduct of the state was so serious as to bring the administration of justice into disrepute. |
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R v Loosely, House of Lords |
A stay is granted if the misconduct of the state was so serious as to bring the administration of justice into disrepute. (Doubted by the public - public confidence is ruined) |
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