F2.36 – s78 PACE: Discretion to Exclude at Common Law: Nature of Discretion

Question 1

Is there a common law authority to suggest that a criminal court as any power to ADMIT as a matter of discretion evidence which is inadmissible under an exclusionary rule of law?

Answer 1

No.

Question 2

Does a judge always have the discretion to EXCLUDE otherwise admissible prosecution evidence if, in their opinion, its prejudicial effect on the minds of the jury outweighs its true probative value?

Answer 2

Yes - this is part of his or her inherent power and overriding duty in every case to ensure that the accused recieves a fair trial.

Question 3

What is the classic description of the judge’s discretion to exclude evidence as given by Lord du Parcq, delivering the reasons of the Board in Noor Mohamed v The King [1949] AC 182

Answer 3

Referring to cases in which the prosecution seek to admit similar-fact evidence, his lordship said (at p. 192):

‘… 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 EXCLUDE 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.’