Principles and Procedures to Admit and Exclude Evidence

Question 1

What are the two basic requirements for evidence to be considered in a criminal case?

Answer 1

(a) evidence must be relevant to the facts in issue in the case; and

(b) evidence must be admissible. This means that the rules which comprise the law of evidence must allow such evidence to be used in a criminal trial

Question 2

When does the court have discretion to exclude evidence?

Answer 2

s78 of the CJPOA 1994

Court has a discretion to exclude improperly or unfairly obtained prosecution evidence if ‘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.’

Question 3

What type of breach would be necessary for the court to consider exercising its discretion to exclude evidence?

Answer 3

Defence will only succeed in getting the court to exclude evidence if the police breach of PACE or the Codes of Practice, in obtaining evidence, was ‘significant and substantial’

Court will likely only exclude unreliable evidence

• If the evidence is relevant and nothing in the way it was obtained casts doubt on its reliability, it is unlikely to be excluded, even if police breached PACE or COP when obtaining it
• With the exception of confession and identification evidence, a court will generally not exclude improperly obtained evidence where it is relevant evidence and nothing in the way it has been obtained casts doubt on its reliability

Question 4

Give an example scenario of when the s78 power might be used and when it might not be used

Answer 4

Example 1

• Even though D was searched in breach of PACE, the drugs found on their person are not likely to be excluded, as the manner in which the drugs were obtained does not cast doubt on the reliability of the evidence and it is relevant to a potential drug offence
• No causal link between the evidence coming into existence and unlawful search (breach of PACE), as the drugs were always present and did not arise because of unlawful search

Example 2

• Lying to the legal adviser, which results in the defendant being advised differently from what they would have otherwise been, due to absence of other evidence, is a significant and substantial of PACE
• Furthermore, it casts doubt on the reliability of the confession, so is likely to be excluded under s78

Question 5

What types of evidence might the defence seek to exclude?

Answer 5

(a) evidence obtained following an illegal search

(b) identification evidence

(c) confession evidence

(d) evidence obtained from the use of covert listening and surveillance devices and

(e) evidence obtained in ‘undercover’ police operations

Question 6

Give a brief summary of when s78 is likely to be engaged

Answer 6

• Evidence is relevant to charge
• Significant and substantial breach of PACE/Code of Conduct in obtaining evidence
• Manner in which it was obtained casts doubt on reliability

If the above are satisifed, the court may or may not exclude the evidence, making it inadmissible at trial

If it is admitted, D can challenge the credibility when giving evidence or cross-examining

Question 7

When might the common law power to stop a case as an abuse of process be relevant?

Answer 7

Might be used where the police have obtained evidence through entrapment

• This is especially the case where the accused was unlikely to have committed the offence but for the actions of the police

Might also occur where there is undue delay by the prosecution, which prejudices the defendant’s ability to prepare their defence

Question 8

Give an example scenario of when the abuse of process argument might work

Answer 8

In a situation where an undercover police officer applies pressure to get D to supply them with drugs, although, there is no defence known as entrapment and the evidence is highly relevant, the abuse of process argument is still likely to succeed as they have been incited to commit an offence he would not likely have committed but for the entrapment

• As such, the proceedings may be stayed as an abuse of process
• Entrapment might equal misuse of power and it is not acceptable for the state to lure individuals into committing unlawful acts and then prosecute for doing so