Chapter 4 Outline answers to essay questions

Chapter 4 Outline answers to essay questions

Improperly obtained evidence, other than confessions

'Section 78 of the Police and Criminal Evidence Act 1984 empowers the court to exclude prosecution evidence if its admission "would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it". However so far there has been little inclination to elucidate the principles which should govern the exercise of this discretion.' (Zuckerman (1989, p352)).

Explain, with reasons, whether Zuckerman's comment is still valid today in relation to the discretionary exclusion of improperly obtained evidence other than confessions.

The scope of the question:

The comment invites you to review the case law on exclusion of evidence under s78 PACE and analyse the judgments to see if you derive a coherent set of principles. You should initially contrast the pre-PACE position, exemplified by Sang [1980], where the very existence of a discretion to exclude was left unclear. You will need to be familiar with the leading cases and also with academic comment, most of which has been critical of an overly cautious stance of the judiciary. Your introduction should stress the importance of the HRA 1998 and the subsequent more jurisprudential approach.

Arguments to suggest the statement is still valid:

  • Apart from confessions, there are few cases where s78 has been applied to exclude evidence and thus, although the courts accept the principle that s78 may exclude entrapment evidence, for example, it is rarely applied. Also the test set out e.g. in Smurthwaite [1994], are based on practical considerations rather than principle.
  • Academic commentary has identified a possible structured approach to exclusion as being based on reliability, deterrence, compensating the defendant, providing a fairer balance between the state and defendant, and upholding the integrity of the criminal justice process.
  • Reliability of evidence does provide a coherent thread in the cases- usually ensuring admissibility not exclusion – see Chalkley [1998], Khan [1997] – but this is a pragmatic not a principled stance.
  • The case law suggests deterrence is not a recognised principle – see Mason (1988) – although it may have that indirect effect. It is difficult to argue that police behaviour will be affected by an exclusion of evidence at a trial some time away.
  • Public opinion would arguably not countenance acquittal of the obviously guilty to compensate for earlier police transgressions. The evidence exists and it might defy common sense to exclude it.
  • Although the doctrine of abuse of process (see Looseley [2001]) has operated more robustly than s78 to safeguard a principled approach . Note that the courts are reluctant to apply the doctrine to breaches of the Regulation of Investigatory Powers Act (2000) (RIPA), see Warren v Att-Gen of Jersey (2012).
  • Breaches of Art. 8 do not lead to exclusion of evidence. See R v Button (2005) where a secret recording of a suspect in his cell had been made. The Court rejected the argument that it would be unlawful not to exclude evidence obtained in breach of Art 8. In R v Khan (2013) a covert recording was made in good faith but in breach of RIPA. There had been a breach of Art 8 but the judge had not erred in refusing to exclude evidence under s78. The test was fairness to the proceedings. See also R v Barkshire (2011)

Arguments to suggest the statement is no longer valid:

On the other hand there is evidence to suggest that the courts have increasingly adopted a principled stance on s78:

  • In Shannon [2001] the court applied the test of the violation of a Convention right as one of the criteria for exclusion.
  • In Looseley [2001] the House of Lords acknowledged the importance of both the protective principle and the need to uphold the integrity of the criminal justice process.
  • The ECHR and the HRA 1998 have led to an increasingly principled approach e.g. Allan v UK (2002), Texheira v Portugal (1998).
  • Looseley [2001] has demonstrated the close link between abuse of process and s78 grounds of exclusion.

Conclusion:

Some academic commentators acknowledge that a blanket exclusionary practice would not be appropriate. Laudan (2008, p190) for example argues that false acquittals may result from excluding evidence because of the way evidence has been obtained. Others, however, call for the application of the principled approach which is suggested in the question. Ashworth for examples stresses the importance of protecting constitutional rights – citing the Canadian Charter of Rights and Freedom. Roberts and Zuckerman (2010, p39) also recommend ‘refocusing trial judges’ training and trial management on the principled exercise of judicial discretion.

The legitimacy of the proceedings appears to be an increasingly important factor in deciding on admissibility as Looseley demonstrates. A v Secretary of State for Home Department (2006) is a landmark principled stance although not on s78, it does illustrate the increasingly jurisprudential reasoning of the House of Lords also shown in Looseley [2001]. Not also the more robust approach to exclusion of evidence in the Strasbourg jurisprudence, see for example R v Allan v UK (2002).

Note finally that judicial discretion cannot override parliamentary provisions which give increased powers to investigative authorities.

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