4.2 Excluding confessions - s.78 Flashcards
Where is the court’s general power to exclude evidence set out?
Section 78 PACE
What is the test for excluding evidence under s.78 PACE?
Section 78(1) PACE ... 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.
In which proceedings does s.78 apply?
Section 78(1) PACE In any proceedings
Is s.78 mandatory or discretionary?
Discretionary -
Section 78(1) PACE "the court may refuse..."
R v Samuel [1988] QB 615 (CA)
R v Samuel [1988] QB 615 (CA)
The judge’s discretion under s.78 PACE is broad and the assessment is fact-sensitive. The higher courts will not interfere with the judge’s decision unless:
1. He has failed to exercise his discretion;
2. He has come to a conclusion that no reasonable judge could have reached.
Does breach of the PACE Codes automatically lead to exclusion under s.78?
Breach of PACE Codes does not automatically lead to exclusion. It is within the judge’s discretion.
The court is concerned with the effect of the breach rather than its nature, and the enquiry into the effect is fact-sensitive.
Can ss. 76 or 78 PACE be used to exclude evidence after it has been admitted?
Sat-Bhambra (1988) 88 Cr App R 55
No. They are ‘prospective’ powers that must be exercised in advance of admission.
What is the effect of Section 78 PACE on other statutory exclusionary rules?
Section 78(2) PACE Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.
What is the effect of Section 78 PACE on common law rules of excluding evidence?
Section 82(3) PACE Nothing in this Part of this Act shall prejudice any power of a court to exclude evidence (whether by preventing questions from being put or otherwise) at its discretion.
When might the common law rules on excluding evidence arise?
Rarely, but they can arise when evidence is already admitted and new grounds for challenging it arise.
What is the test for the judge to exercise her common law discretion to exclude evidence?
R v Sang [1980] AC 402 (HL)
Where permitting the evidence would be “more prejudicial than probative”.
[i.e. an early form of proportionality.]
What are the options available to a judge once she has decided to use her common law power to exclude evidence after it has been admitted?
R v Rogers [2013] EWCA Crim 2406
- Direct the jury to disregard the evidence;
- Direct the jury as to the factors which might affect the weight of the evidence;
- Discharge the jury.
Does the defence have to choose between applying to exclude under Section 76 or Section 78?
Beeres v CPS [2014] EWHC 283 (Admin)
No - ss.76 and 78 are disjunctive - you can use the same facts to rely on one or both. Always consider Section 76 first.
R v Keenan [1990] 2 QB 54
R v Keenan [1990] 2 QB 54
Principle: “significant and substantial” breaches of PACE Codes will frequently lead to exclusion under s.78.
Facts: D was convicted after being “verballed” by police.
Held: The confession should never have been admitted. It was unfair because it removed the protection of Code C from having police put words in D’s mouth. D was denied the opportunity to contemporaneously correct any inaccuracies in the police allegation of what he said.
