s78 Application to Exclude or Admit Evidence Flashcards
1
Q
What evidence does s78 PACE apply to?
A
Prosecution evidence only
2
Q
When must the application be made?
A
Before the prosecution rely on the evidence
3
Q
What evidence can the application be made for?
A
- ID evidence - failure to follow procedure or conduct in line with PACE
- Hearsay
- Bad character
- Confessions
- Statements in interview
- Witness statements
4
Q
Submission Structure
A
Evidence MAY (discretionary) be excluded if it appears to the court that…
- ‘Having regard to all the circumstances, including those in which the evidence was obtained, the admission would have such an adverse effect on the fairness of proceedings, the court ought not to admit it
- When considering the issue of fairness, the court must strike a balance between what is fair to prosecution & what is fair to defence
- The court is not concerned with disapproving police conduct or punishing prosecution, but whether fairness dictates that the evidence should be excluded (i.e., its effect on the defendant)
5
Q
What are examples of poor police conduct which could arise under s78
A
- Breaches of ECHR
- Breaches of PACE - significant and substantial, the effect of which is unfairness
- Bad faith on part of investigators
- Not asked to take place in formal ID procedures
- Procedural irregularities
- Evidence obtained unlawfully, improperly, unfairly
- fundamental right of access to legal advice has been improperly denied or waiver of right was not voluntary, informed or unequivocal
- Failure to caution
- No appropriate adult
- Confession obtained by breach
Can be used as an alternative in conjunction with other tests or as a standalone argument
