08/05/24

Exclusion of Evidence in Court | PACE

Exclusion of Evidence in Court | PACE
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The Police and Criminal Evidence Act 1984 (PACE) is an important piece of legislation that governs the powers and procedures of police officers when conducting criminal investigations, making arrests and gathering evidence.

It establishes guidelines for the detention, questioning, and treatment of suspects, as well as rules for the conduct of searches and seizures. PACE aims to balance the rights of individuals with the needs of law enforcement, ensuring fair treatment during criminal investigations.

Amongst many important provisions within PACE is section 76, which deals with challenges to the admissibility of confessions and section 78 which gives the court a discretionary power to exclude evidence.

Essential elements in the provision of fairness include the quality of the evidence which is permitted to be placed before a Jury and the exclusion of evidence which is deemed unsatisfactory.

Article 6 of the European Convention on Human Rights (‘ECHR’) provides for the fairness of trial in criminal proceedings stating, ‘everyone is entitled to a fair and public hearing’.

Helen Holder of KANGS outlines these two important sections of PACE.

PACE Section 76 | Confessions

This section provides that in any proceedings, a confession made by an accused person may be given in evidence against him as far as it is relevant to any matter in issue in the proceedings and is not excluded by the court.

However, the court will not allow the confession to be given in evidence, unless the Prosecution can prove beyond reasonable doubt that such circumstances did not exist, where the accused maintains that the confession was given:

  • as the result of oppression
  • in consequence of anything said or done which was likely, in the circumstances existing at the time, to render such confession unreliable.

Oppression is defined as ‘torture, inhuman or degrading treatment, and the use or threat of violence,’ which reflects Article 3 of ECHR.

In R v Fulling [1987], the Court of Appeal stated that oppression was to be given its ordinary dictionary meaning and would include impropriety by the interrogator.

The Court of Appeal also maintained that unreliable confessions would include those:

  • obtained as a result of inducement, such as the promise that prosecution would not result from the confession,
  • violence against the accused,
  • resulting from threats made to the accused,
  • involving mistreatment such as failing to provide food and water.
  • where there had been a failure to caution,
  • failure to provide sufficient rest prior to interview.

Where the Prosecution proposes to give in evidence a confession made by an accused person, the court may of its own volition, require the Prosecution to prove that it was not obtained by any form of oppression.

Even where a confession is excluded, whether wholly or partly, admissibility in evidence will still be allowed of any facts discovered as a result of the confession or where the confession shows how the accused speaks, writes, or expresses himself in a particular way, of so much of the confession as is necessary to show that he does so.

However, this evidence will not be admissible unless the accused or someone on their behalf provides evidence as to how it was discovered.

Section 78 | Exclusion of Unfair Evidence

This section enables the court to refuse to allow evidence on which the Prosecution proposes to rely on if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, admission of the evidence would have an adverse effect on the fairness of the proceedings.

In R v Quinn [1990] Lord Lane stated ‘The function of the judge is therefore to protect the fairness of the proceedings, and normally proceedings are fair if … all relevant evidence [is heard] which either side wishes to place before [the court], but proceedings may become unfair if, for example, one side is allowed to adduce relevant evidence which, for one reason or another, the other side cannot properly challenge or meet.’

The court will consider, amongst other things, whether evidence was obtained illegally, improperly or unfairly. However, evidence obtained in this manner does not automatically result in it being excluded.

In Attorney General’s Reference (No 3 of 1999), the DNA of a rapist, which had been retained following a previous burglary, was wrongly detained by police but used by them in establishing the rape. The House of Lords found that whilst the police should not have retained the DNA, it could be used as evidence to support the rape allegations.

Examples of evidence that may be excludable under s.78 include:

  • failure to follow correct procedures at interview of the accused,
  • illegal wire-tapping,
  • admissions of co-defendants,
  • information regarding previous convictions,
  • ID identifications.

How Can We Assist?

Experienced consideration of the material served by the Prosecution, upon which it intends to rely when endeavouring to prove its case against a defendant, forms an essential part of the defence preparation on behalf of every client facing charges of criminal activity of every nature.

KANGS provides many years of experience gained from defending clients charged with criminal offences of every conceivable nature which includes attending police interviews under caution and guiding clients through what is, invariably, an intimidating and worrying process.

Having experienced legal representation from the outset of any criminal investigation and court proceedings is essential to ensure that all aspects of the due process are properly conducted.

Should you require assistance in relation to allegations of criminal conduct of any nature, please do not hesitate to contact our Team who will be delighted to assist and support you.

Tel:       0333 370 4333

Email: info@kangssolicitors.co.uk

We provide an initial no obligation consultation from our offices in London, Birmingham, and Manchester. Alternatively, we provide initial consultations by telephone or video.

Helen Holder

Helen Holder
Partner

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Mohammed Ahmed

Mohammed Ahmed
Associate

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Sukhdip Randhawa

Sukhdip Randhawa
Legal Director

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