Exclusion of unfair evidence in criminal proceedings
Produced in partnership with Hannah Thomas of 2 Hare Court
Exclusion of unfair evidence in criminal proceedings

The following Corporate Crime guidance note Produced in partnership with Hannah Thomas of 2 Hare Court provides comprehensive and up to date legal information covering:

  • Exclusion of unfair evidence in criminal proceedings
  • The test for exclusion under PACE 1984, s 78
  • Applying the PACE 1984, s 78 test to the circumstances
  • 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, having regard to all the circumstances including how the evidence was obtained, if admission of the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.

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 reported by LexisNexis®).

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.

The power to exclude is discretionary. See the wording in the statute: ‘…the court may refuse

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