F2.9 – S78 PACE: Scope for Exclusion Wider than at Common Law

Question 1

Is the mere fact that evidence of D’s conduct might have a prejudicial effect a reason to exclude it under the PACE 1984, s.78?

Answer 1

No?

See Hunter [2021] EWCA Crim 1785, [2022] 1 Cr App R 13 (188), 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)

Question 2

Which evidence is open to exclusion at common law? (a-b)

Answer 2

(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 (Sang [1980] AC 402: see F2.45), may be excluded either at common law or pursuant to the PACE 1984, s. 78.

Question 3

What is the relationship between evidence that can be properly excluded at common law and evidence that can be excluded under s78?

(As stated by Woolf LJ in Matto v Wolverhampton Crown Court [1987] RTR 337)

Answer 3

‘in any case where the evidence could properly be excluded at common law, it can certainly be excluded under s. 78’.

Question 4

In O’Connor (1986) 85 Cr App R 298, where A and B were jointly charged with having conspired to commit an offence. A pleaded guilty and B not guilty.

At B’s trial, the prosecution sought to admit the evidence of A’s conviction under s74 PACE. The effect of this evidence is clearly prejudicial.

Did the COA hold that the evidence should have been excluded under common-law discretion or s78?

Answer 4

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. See also Horne [2020] EWCA Crim 487, [2021] 1 Cr App R 2 (15) and Mattison [1990] Crim LR 117, which are considered at F12.13.

Question 5

Contrary to the decision in O’Connor (1986), in Daniels [2010] EWCA Crim 2740, [2011] 1 Cr App R 18 (228), what did the court decide in relation to s74 and s78?

What should be done to manage the dangers inherent in giving evidence against accomplices?

Answer 5

It was held that the fact that D has entered into an agreement pursuant to what is now the SA 2020, s. 74 (see E2.6), 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 (see F5.13).

Question 6

(i) What view does Watkins LJ express in Mason [1988] 3 All ER 481 about the relationship between the powers conferred in s78(1) PACE and common law powers to exclude evidence?

(ii) Which authorities suggest this view is erroneous? (a-b)

Answer 6

(i) Watkins LJ said that s. 78(1) ‘does no more than to restate the power which judges had at common law before the 1984 Act was passed’.

(ii) (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 [1980] AC 402 at p. 437, see F2.45, 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 (Fox [1986] AC 281). See further F2.48.