Chapter 4 Key facts checklists

Chapter 4 Key facts checklists

Improperly obtained evidence, other than confessions

 There is no rule of law requiring the exclusion of evidence simply because it has been improperly, illegally or unfairly obtained.

 There is a judicial discretion to exclude such prosecution evidence under both common law and statute and the key test is whether the pre-trial action threatens the fairness of the trial.

 Section 78 Police and Criminal Evidence Act 1984 (PACE) applies to the exclusion of non-confession as well as confession evidence on which the prosecution proposes to rely.

 The most common areas of exclusion, other than confession evidence, fall into two areas: first, undercover police activity involving traps or entrapment and second, obtaining evidence by acting improperly or unlawfully, including trespass or breach or evasion of legislation such as PACE and the Codes of Practice.

 The court may elect to stay the prosecution rather than exercise discretion to exclude evidence if the continuation of the prosecution would be an affront to the public conscience.

The Court of Appeal will interfere with a trial judge’s exercise of his discretion to exclude evidence only for unreasonableness by the Wednesbury test but the appellate court will review the grounds for stay of prosecution more robustly.

 The common law discretion, retained in s82(3) PACE, may still be employed, in particular if the evidence has already been admitted, to guide judicial directions to the jury.

 The relationship between the common law and s78 PACE has not been clearly set out but it is arguable that the latter allows a more extensive discretion.

 The European Court of Human Rights (ECtHR) has held that s78 enshrines the relevant principles of Art 6 European Convention on Human Rights (ECHR).

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