Exclusion of unfair evidence
Produced in partnership with David Jenkins of 3 Paper Buildings
Exclusion of unfair evidence

The following Corporate Crime guidance note Produced in partnership with David Jenkins of 3 Paper Buildings provides comprehensive and up to date legal information covering:

  • Exclusion of unfair evidence
  • The test for exclusion under PACE 1984, s 78
  • Applying the test
  • Applications to exclude on grounds of breach of the PACE 1984 Codes of Practice
  • Drink driving cases
  • Applications to exclude video-recorded evidence-in-chief
  • Applications to exclude evidence obtained by surveillance
  • Applications to exclude evidence obtained by deceit
  • Procedure for application to exclude evidence

The test for exclusion under PACE 1984, s 78

An accused has no entitlement to have evidence excluded simply because it has been obtained unlawfully. To protect an accused from wrongful conviction, however, section 78 of the Police and Criminal Evidence Act 1984 (PACE 1984) gives the court a discretionary power to exclude evidence that has been obtained unfairly.R v P [2001] 2 All ER 58PACE 1984, s 78

The provisions only apply to prosecution evidence and, the courts' discretion to exclude evidence in the Crown Court can only be exercised before the evidence is admitted. Once the evidence has been admitted, PACE 1984, s 78 will not apply; the defence will have to rely on the court's common law discretion to exclude evidence. This power is expressly preserved by PACE 1984 (see R v Sat-Bhambra (1988) 88 Cr App Rep 55 (not available on Lexis®Library)).PACE 1984, s 82(3)

The test the court will apply in deciding whether to exclude evidence is whether the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court should not admit it. If the court makes such a finding, it may exclude the evidence.PACE 1984, s 78(1)

Applying the test

In applying the test the court is required to consider all the circumstances of the case, including the circumstances in which the evidence was obtained.PACE 1984, s 78(1)

Normally proceedings are fair if a jury hears all the relevant evidence which either side wishes to place before it. Proceedings become unfair if one side is allowed to adduce relevant evidence which the

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