F2.7 – s78 PACE Flashcards
What does s78(1) contain (generally)?
The most important discretionary power to exclude otherwise admissible prosecution evidence.
(As to the common-law discretion founded on the duty of the judge or magistrates to ensure that every accused has a fair trial, see F2.36 et seq.)
According to s78(1) PACE, in any proceedings, on what basis can a court 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.
According to s78(2), what is the impact of s78 in relation to rules of law?
‘Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence’.
To what does s78 apply?
To evidence on which the prosecution PROPOSES to rely.
When should applications under s78 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, Sat-Bhambra (1988) 88 Cr App R 55, considered at F18.67, and, in the case of identification evidence, Lashley [2005] EWCA Crim 2016.
What type of power is s78(1) GENERALLY REGARDED as conferring?
A discretionary power.
In Jelen (1989) 90 Cr App R 456 Auld J said, at pp. 464-5:
‘… 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 well founded distinctions between cases.’
(i) What is the critical ingredient for applying s78 at the first instance?
(ii) What role does authority have in this?
(i) ‘feel’ for the case
(ii) no much.
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 (Thompson [2018] EWCA Crim 2082).
STRICTLY SPEAKING, does s78(1) involve an exercise of discretion?
Why?
No.
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 Auld LJ in Chalkley [1998] QB 848 at p. 874).
In Boxall [2020], what was said (per curiam) that the exercise of judgment under s78(1) can be described as?
An EVALUATIVE DECISION in ensuring that there is a fair trial in accordance with the ECHR, Article 6
How does the COA treat decisions of trial judges under s78?
The Court of Appeal has been loath to interfere with the decisions of trial judges under s. 78.
In which scenarios HAS IT BEEN SAID that the COA intervene with the decisions of trial judges under s78?
It has been said that the COA will intervene only
(i) if the judge has not exercised the discretion under s. 78 at all or
(ii) has done so but in a Wednesbury unreasonable manner (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223).
and that where the Court of Appeal does intervene, it will exercise its own discretion (O’Leary (1988) 87 Cr App R 387 per May LJ at p. 391; Quinn [1995] 1 Cr App R 480 at p. 498; Christou [1992] QB 979; Khan (Dameed Umer) [1997] Crim LR 508; Dures [1997] 2 Cr App R 247).
What should be the TRUE TEST for the COA in regard to decisions of trial judges under s78?
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
(see the Criminal Appeal Act 1968, s. 2(1), at D26.15 et seq., and generally A Clarke, ‘Safety or Supervision’ [1999] Crim LR 108).
