'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.

Analysis 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. Note that the question asks you specifically about evidence other than confessions so, although you may cite some relevant cases where confession evidence was at issue, you should concentrate on the specific areas of undercover policing. This includes entrapment and also cases where the contested evidence is concerned with the admissibility of evidence other than a confession, where there has been some impropriety or illegality on the part of the police. Since the court’s ability to exclude evidence is an exclusionary discretion, it is not surprising that the appeal courts have adopted varying interpretations. The somewhat subjective nature of discretion arguably means also that there is a reduced scope for the Strasbourg Court to intervene. Your answer should centre on two propositions, namely one that the Zuckerman observation still holds and the other that the trend in the last three decades by contrast embraces a more coherently principled stance.

Examples to suggest the statement is still valid:

• Apart from confessions and to a lesser extent identification evidence, there are few cases where s78 has been applied to exclude improperly obtained evidence and thus, although the courts accept the principle that s78 may exclude entrapment evidence, for example, it is rarely applied. Also, the tests set out in a number of cases, e.g. in Smurthwaite [1994], are based on practical considerations rather than principle. In relation to identification evidence, it is arguable that, although Code D and the Turnbull Directions do set out a structure for exclusion, arguably there are a number of deficiencies, such as voice recognition.
• 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. However, the case- law indicates the overwhelming concentration on reliability of evidence. This 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) where in a confession case it was held that overall, the purpose of the section was not to discipline the police. Although it may have that indirect effect, it is arguable that police behaviour will not 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.
• 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.

Examples 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. Note the quashing of convictions based on police under cover activity in R v Barkshire (2011). There is at the time of writing an ongoing official enquiry into police undercover activity.
• A v Secretary of State for Home Department (2006) is a landmark principled stance on exclusion of evidence. Although here the jurisprudence is based on the common law and not on s78, it does illustrate the increasingly jurisprudential reasoning of the House of Lords also shown in Looseley [2001].
• 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. The leading authority on abuse of process is R v Latif; R v Shazad (1996). Choo (2020, p. 161) comments ‘The willingness of the House of Lords to breathe new life into the abuse of process doctrine may be viewed as an expression of its recognition that that it is now completely outdated to regard judicial responsibility as being confined to ensuring the non-conviction of an innocent person’. 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).

Assessment of the above analysis

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 example, 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.

Conclusion

The legitimacy of the proceedings appears to be an increasingly important factor in deciding on admissibility as Looseley demonstrates. However, as Hyland and Walker (2014, p 577) point out ‘the judgment remains very limited for the regulation of covert policing’.

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