10. Preliminary evidential matters . Common law powers to exclude evidence Flashcards
Police and Criminal Evidence Act 1984, s. 78
The most important discretionary power to exclude otherwise admissible prosecution evidence is contained in the PACE 1984, s. 78(1).
Police and Criminal Evidence Act 1984, s. 78
(1) 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.
(2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.
Section 78 applies to evidence on which the prosecution propose to rely and therefore applications to exclude evidence under the section should be made before the evidence is adduced (and, if reference is to be made to it in the prosecution opening speech, before that speech): see, in the case of a confession and, in the case of identification evidence.
Section 78(1) is generally regarded as conferring a discretionary power.
… the decision of a judge whether or not to exclude evidence under section 78 of the 1984 Act is made as a result of the exercise by him of a discretion based upon the particular circumstances of the case and upon his assessment of the adverse effect, if any, it would have on the fairness of the proceedings. The circumstances of each case are almost always different, and judges may well take different views in the proper exercise of their discretion even when the circumstances are similar. This is not an apt field for hard case law and wellfounded distinctions between cases.
Similarly, it has been said that ‘feel’ for the case is usually the critical ingredient of the decision at first instance, which the Court of Appeal lacks, context is vital, and therefore citations from ‘authority’, in reality no more than observations of a fact-specific decision, are unnecessary.
Strictly speaking, s. 78(1) does not involve an exercise of discretion because, if a court decides that admission of the evidence in question would have such an adverse effect on the fairness of the proceedings that it ought not to admit it, it cannot logically exercise a discretion to admit it.
per curiam, that exercise of the judgment under s. 78(1), although sometimes described as a discretion, is more properly described as an evaluative decision in ensuring that there is a fair trial in accordance with the ECHR, Article 6. Either way, the Court of Appeal has been loath to interfere with the decisions of trial judges under s. 78. It has been said that the Court of Appeal will intervene only if the judge has not exercised the discretion under s. 78 at all or has done so but in a Wednesbury unreasonable manner and that where the Court of Appeal does intervene, it will exercise its own discretion.
However, it is submitted that the true test for the Court of Appeal should be whether the admission of the evidence in question renders the conviction unsafe, since that is now the only ground on which it may allow an appeal against conviction
General Application
Section 78(1) may be used to attempt to exclude any evidence on which the prosecution propose to rely e.g.,
depositions and documentary records
information provided by the defence on a plea and case management hearing forms
confessions
identification parades
voice identifications
intoximeter readings
Scope for Exclusion Wider than at Common Law
The mere fact that evidence of D’s conduct might have a prejudicial effect is not a reason to exclude it under the PACE 1984, s. 78.
a case of fraudulent trading, in relation to evidence of ‘ticket touting’ for two highly emotive events, a concert in memory of those killed in a terror bombing and a teenage cancer trust concert).
However, evidence open to exclusion at common law, i.e.
(a) any admissible evidence which is likely to have a prejudicial effect out of proportion to its probative value, and
(b) admissions, confessions and other evidence obtained from the accused after the commission of the offence by improper or unfair means, and which might operate unfairly against the accused may be excluded either at common law or pursuant to the PACE 1984, s. 78.
‘in any case where the evidence could properly be excluded at common law, it can certainly be excluded under s. 78’. An example is O’Connor where A and B were jointly charged with having conspired to commit an offence. A pleaded guilty and B not guilty. At the trial of B the prosecution sought to admit the conviction of A under the PACE 1984, s. 74. The prejudicial effect of this evidence clearly outweighed its probative value, because A’s admission of the offence charged might have led the jury to infer that B must have conspired with A, and therefore the common-law discretion to exclude could have been invoked. Instead, the Court of Appeal held that the evidence should have been excluded under s. 78.
In Daniels on the other hand, it was held that the fact that D has entered into an agreement pursuant to what is now the SA 2020, s. 74 will not in itself call for exclusion of D’s evidence under s. 78, even if it is of central importance; the dangers inherent in giving evidence against accomplices are met by giving the jury a proper warning.
In Mason ‘does no more than to restate the power which judges had at common law before the 1984 Act was passed’. It is submitted that this view is erroneous in principle and inconsistent with the bulk of authority.
(a) Concerning the provisions of Part VIII of the PACE 1984, s. 82(3) expressly preserves the discretion to exclude which the court possessed at common law prior to the coming into force of the Act, and therefore Parliament, in enacting s. 78, must be taken to have extended the pre-existing discretion.
(b) Section 78(1), insofar as it may be used to exclude evidence obtained by improper or unfair means, is not confined, as is the common-law power described in Sang to ‘admissions, confessions and generally with regard to evidence obtained from the accused after the commission of the offence’, but extends to any evidence on which the prosecution propose to rely.
(c) Nor, in relation to evidence obtained improperly or unfairly, is s. 78(1) necessarily confined, in the way that the common-law power apparently is, to cases in which those who obtained the evidence acted mala fide
Application to Evidence Obtained Unlawfully, Improperly or Unfairly
The primary importance of s. 78 is not the degree of overlap with the common law, but the fact that it extends the common-law powers by reason of its potential for the exclusion of evidence obtained unlawfully, improperly or unfairly. Concerning evidence obtained by such means, the common-law powers are restricted to admissions, confessions and other evidence obtained from the accused after the commission of the offence.
Section 78, however, is capable of application to any evidence obtained illegally or by improper or unfair means and on which the prosecution seek to rely, whether obtained from the accused, his or her premises or from any other source.
Discretion to Exclude at Common Law
Nature of Discretion
Although there is no common-law authority to suggest that a criminal court has any power to admit as a matter of discretion evidence which is inadmissible under an exclusionary rule of law, it is well established that a judge, as part of his or her inherent power and overriding duty in every case to ensure that the accused receives a fair trial, always has a discretion to exclude otherwise admissible prosecution evidence if, in the judge’s opinion, its prejudicial effect on the minds of the jury outweighs its true probative value.
The classic description of the discretion
Referring to cases in which the prosecution seek to admit similar-fact evidence:
… in all such cases the judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial, having regard to the purpose to which it is professedly directed, to make it desirable in the interest of justice that it should be admitted. If, so far as that purpose is concerned, it can in the circumstances of the case have only trifling weight, the judge will be right to exclude it. To say this is not to confuse weight with admissibility. The distinction is plain, but cases must occur in which it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible.
