Learning Outcomes
After studying this article, you will be able to explain the discretionary power of the court to exclude evidence under s.78 PACE 1984, identify the circumstances in which this discretion is exercised, and apply the principles to SQE1-style scenarios. You will also understand the relationship between s.78, other exclusionary rules, and the right to a fair trial.
SQE1 Syllabus
For SQE1, you are required to understand the principles and procedures for admitting and excluding evidence in criminal proceedings, with a focus on the discretionary exclusion of evidence under s.78 PACE 1984. In your revision, pay particular attention to:
- The scope and purpose of s.78 PACE 1984 in criminal trials.
- The factors courts consider when deciding whether to exclude evidence for unfairness.
- The relationship between s.78, other exclusionary rules (such as s.76 PACE), and human rights protections.
- How breaches of police procedure or rights may affect admissibility.
- The practical application of s.78 to confessions, unlawfully obtained evidence, and trial fairness.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What is the main test the court applies under s.78 PACE 1984 when deciding whether to exclude prosecution evidence?
- Can evidence obtained in breach of the PACE Codes of Practice be excluded under s.78, even if it is highly relevant to the case?
- How does s.78 PACE 1984 interact with the right to a fair trial under Article 6 of the European Convention on Human Rights?
- Give an example of a situation where a confession might be excluded under s.78 but not under s.76 PACE.
Introduction
When evidence is obtained in a way that may undermine the fairness of a criminal trial, the court has a discretionary power to exclude it under section 78 of the Police and Criminal Evidence Act 1984 (PACE). This provision is central to protecting the right to a fair trial and ensuring that the criminal process is not tainted by serious breaches of procedure or rights. For SQE1, you must be able to explain the scope of s.78, the factors courts consider, and how it is applied in practice.
The Discretionary Power under s.78 PACE 1984
Section 78 PACE 1984 gives the court a broad discretion to refuse to admit prosecution evidence if, considering all the circumstances—including how the evidence was obtained—its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
Key Term: s.78 PACE 1984
A statutory provision allowing the court to exclude prosecution evidence if its admission would adversely affect the fairness of the proceedings.
Scope of s.78
The discretion under s.78 applies to all prosecution evidence, not just confessions. It covers evidence obtained by the police or other investigators, including physical evidence, identification evidence, and witness statements.
Key Term: judicial discretion
The power of the judge to make decisions based on the circumstances of the case, rather than being bound by strict rules.
Factors Considered by the Court
When deciding whether to exclude evidence under s.78, the court will consider:
- The seriousness and nature of any breach of legal procedure or rights.
- Whether the evidence was obtained in bad faith, by oppression, or by significant and substantial breaches of the PACE Codes.
- The impact of admitting the evidence on the fairness of the trial as a whole.
- The probative value of the evidence versus its prejudicial effect.
- Whether admitting the evidence would undermine public confidence in the justice system.
Key Term: fairness of the proceedings
The requirement that the trial process is just, impartial, and respects the rights of the defendant.
Relationship with Other Exclusionary Rules
Section 78 operates alongside other exclusionary provisions, such as s.76 PACE (which deals specifically with confessions obtained by oppression or unreliability). While s.76 is mandatory—requiring exclusion if the conditions are met—s.78 is discretionary and can be used to exclude any prosecution evidence if fairness is at risk.
Key Term: oppression
Conduct by police or investigators that is harsh, degrading, or involves threats or violence, making evidence or confessions unreliable.Key Term: unreliability
Circumstances where evidence or a confession may not be trustworthy due to the way it was obtained.
Human Rights Considerations
The discretion under s.78 is closely linked to the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR). Courts must ensure that proceedings are fair, and may exclude evidence obtained in breach of Article 6 or Article 8 (right to respect for private life), especially where the breach is serious and admitting the evidence would compromise the integrity of the trial.
Key Term: Article 6 ECHR
The right to a fair and public hearing within a reasonable time by an independent and impartial tribunal.
Application in Practice
The court will not automatically exclude evidence simply because it was obtained unlawfully or improperly. The breach must be significant and substantial, and the court must be satisfied that admitting the evidence would have such an adverse effect on fairness that exclusion is justified.
Worked Example 1.1
A confession is obtained after the police deny the suspect access to legal advice, in breach of PACE Code C. Should the confession be excluded under s.78?
Answer: The court will consider the seriousness of the breach and its impact on trial fairness. If the denial of legal advice was deliberate or resulted in unfairness, the confession may be excluded under s.78, even if it is not excluded under s.76.
Worked Example 1.2
Police conduct a search without reasonable grounds, contrary to PACE Code A, and find drugs. Can the evidence be excluded under s.78?
Answer: The court will assess the seriousness of the breach and whether admitting the evidence would undermine fairness. If the breach is significant and admitting the evidence would condone misconduct, the court may exclude it under s.78.
Worked Example 1.3
A witness identification is obtained after police fail to follow Code D procedures. The identification is the main evidence against the defendant. What should the court do?
Answer: The court will consider whether the breach of Code D was significant and whether admitting the evidence would make the trial unfair. If so, the identification evidence may be excluded under s.78.
Limits and Practical Considerations
- Minor or technical breaches of procedure will not usually lead to exclusion.
- The court balances the public interest in prosecuting crime with the need to uphold fair trial standards.
- Exclusion is more likely where police misconduct is deliberate or where the breach directly affects the reliability of the evidence.
Exam Warning
The court will not exclude evidence under s.78 simply because it was obtained unlawfully. The key question is whether admitting the evidence would make the trial unfair.
Relationship with Entrapment and Abuse of Process
While s.78 can be used to exclude evidence obtained by entrapment, the preferred approach is often to invite the court to stay the proceedings as an abuse of process if police conduct is so serious that a fair trial is impossible.
Summary
Section 78 PACE 1984 gives the court a discretionary power to exclude prosecution evidence if its admission would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. The court will consider the seriousness of any breach, the impact on trial fairness, and the public interest. The discretion is exercised to protect the integrity of the trial and the rights of the defendant, in line with human rights obligations.
Key Point Checklist
This article has covered the following key knowledge points:
- The court may exclude prosecution evidence under s.78 PACE 1984 if its admission would adversely affect the fairness of the proceedings.
- The discretion applies to all prosecution evidence, not just confessions.
- The court considers the seriousness of any breach, the impact on fairness, and the public interest.
- Section 78 operates alongside other exclusionary rules, such as s.76 PACE.
- The right to a fair trial under Article 6 ECHR is central to the application of s.78.
- Minor breaches will not usually lead to exclusion; the breach must be significant and substantial.
Key Terms and Concepts
- s.78 PACE 1984
- judicial discretion
- fairness of the proceedings
- oppression
- unreliability
- Article 6 ECHR
