S. 78

Question 1

What are the two grounds for abuse of process?

Answer 1

• where the court concludes that the accused can no longer receive a fair hearing.
• where it would otherwise be unfair to try the accused. (integrity of the criminal justice system).

Question 2

What is the remedy for abuse of process?

Answer 2

the case is stayed (closed without a guilty/not guilty verdict)

Question 3

What is the Common law discretion to exclude evidence?

Answer 3

• court can reject evidence where its necessary for a fair trail.
• Only applies to prosecution evidence.

Question 4

If proved, is s.78 (adverse effect on fairness) discretionary?

Answer 4

Yes, the court can decide not to apply it

Question 5

Who can make an application under s.78 (adverse effect on fairness) PACE?

Answer 5

defendant - only applies to prosecution evidence.

(therefore can’t be used against a co-defendant’s evidence)

Question 6

In what circumstances does Section 78 (adverse effect on fairness) apply

Answer 6

Normally applies where there is a significant and substantial breaking of the PACE rules.

Question 7

Which evidence does a Section 78 (adverse effect on fairness) application apply to?

Answer 7

All prosecution evidence (not just confession evidence)

Question 8

When can a section 78 (adverse effect on fairness) application be made?

Answer 8

• before the trial
• at the commencement of the trial
• just prior to the prosecution seeking to admit evidence that the defence wishes to be excluded.

Question 9

What happens if the facts underlying the section 78 (adverse effect on fairness) application are disputed?`

Answer 9

The court will hold a Voir dire - a mini trial to find the facts. There is no burden of proof on either party.

Question 10

What are the grounds of s.78 (adverse effect on fairness)

Answer 10

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 11

Where would a section 78 argument normally be put?

Answer 11

In the defence statement

Question 12

section 78 (adverse effect on fairness) What is the process at the Voir dire?

Answer 12

Need to determine facts for judge to consider s.78

• defence first
• prosecution

Question 13

What standard will the prosecution have to prove their case at the Voit dire?

Answer 13

Beyond all reasonable doubt