Exclusion of evidence on the ground of unfairness

From CrimeLine from Andrew Keogh

Police and Criminal Evidence Act 1984

One of the most important and far reaching sections of the Police and Criminal Evidence Act 1984 is section Section 78 PACE 1984 exclusion of unfair evidence. For the first time exclusion of unfair evidence was put on a statutory footing and importantly trial judges when exercising their judicial discretion whether to admit or exclude relevant evidence under section 78 PACE 1984 are obliged to have regard to all the circumstances, including the circumstances in which the evidence was obtained. The judges common law power to exclude evidence was not effected by the introduction of PACE.

Police and Criminal Evidence Act 1984: section 78, provides that any evidence may be excluded if it appears to the court that "having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."

Section 78 was drafted in broad terms to allow its application in a variety of situations that could not be anticipated. There is no definitive case law defining/explaining the scope of section 78. When an application to exclude the evidence is made, the court will approach the application in two stages:

Firstly, the court will examine "the circumstances in which the evidence was obtained". This deliberately broad phrase will allow the court to consider, if necessary, the entire backdrop to the evidence and how it was obtained. It is therefore important that police officers keep notes in their notebook of the background to the investigation and particular circumstances in which evidence is obtained.

Secondly, the court will consider whether admitting the evidence would have an adverse effect upon the fairness of the proceedings. When considering the issue of fairness, the court must strike a balance between what is fair to the prosecution and what is fair to the defence.

Although section 76 of PACE provides for the exclusion of confessions, this does not affect the ability of the court to exclude confessions if they meet the test set out in s.78. Evidence obtained by a "significant or substantial" breach of PACE or one of the Codes is likely to be excluded, as is a confession obtained by a trick.

There is no requirement for the investigators to have acted in bad faith before evidence is excluded and good faith by investigators will not excuse serious breaches of PACE and the codes of practice. Where there is bad faith on the part of the investigators, this will usually lead to the exclusion of evidence. You should ensure that you are familiar with the terms of the codes.

Common law exclusionary discretion

In addition to the exclusionary discretion found in section 78 PACE, the common law also provides for the court to exclude any otherwise admissible evidence where the probative value of the evidence (i.e., what it proves) is outweighed by the prejudice to the defendant in putting the evidence forward. (R v Sang). See also: Loosely, R. v It is now rare, however, for the common law exclusionary discretion to be relied on, now that PACE S.78 exists.

In R v Sang Lord Diplock stated two propositions:

"(1) A trial judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value.

(2) Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offence, he has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means."(at p 437)

Applying these propositions, the House upheld the view of the lower courts that the judge would have had no power to exclude evidence simply because it emanated from the activities of an agent provocateur.

Exclusion of Evidence: Practice and Principles

Exclusion of Evidence under Section 78 of the Police and Criminal Evidence Act: Practice and Principles Professor Richard Stone

"Section 78 of PACE gives the courts a discretion to exclude from a criminal trial evidence which has been obtained unfairly. The section has resulted in much case law. This article is an attempt to analyse the principles which the courts use to decide whether or not to exercise the discretion to exclude. It starts by examining the decisions of the appellate courts in order to try to identify the factors which the judges regard as relevant to this discretion. Secondly, it examines the possible policies which might underlie a discretion to exclude. It then attempts to match the practice to the policies, and concludes that ‘fairness as fair play’ is the dominant policy currently being used. The conclusion considers how the changes in the rights of the suspect (in particular the right to remain silent) introduced by the Criminal Justice and Public Order Act 1994 are likely to impact on the operation of s 78".....Practice and Principles

Exclusion of evidence under section 78 PACE

Under section 78 PACE 1984 a breach of of defendant's rights under Article 8 Human Rights Act 1998 will not necessarily result in the exclusion of evidence obtained due to that breach. P & Ors, R. [2000] UKHL 69 (24 May 2000); [2002] 1 AC 146 The House of Lords ruled that a where a defendant’s rights under Human Rights Act 1998 have been breached it will not necessarily result in the exclusion of evidence obtained due to that breach. Lord Hobhouse stated that “any remedy for a breach of Article 8 lies outside the scope of the criminal trial”

The test for unlawfully obtained evidence is whether the breach was “significant and substantial”. See: R v Keenan [1990] 2 Q.B. 54.

The Court will assess;

(a) the affect of the breach;

(b) and any subsequent evidence elicited due to that breach;

on the fairness of the proceedings.

The Courts are inclined to exclude evidence obtained unfairly by some deceit or trick played on the suspect and which induces the suspect to confess or reveal incriminating evidence. In R v Mason [1987] 3 All ER 481; (1988) 1 WLR 139 M was arrested on suspicion of arson. The police having no direct evidence to connect the suspect to the crime falsely told him and his solicitor that they had found fragments of glass from a bottle of inflammable liquid near the scene of the crime, and that M's fingerprints were on the fragments. As a result of being told this the suspect confessed to the crime. The Court of Appeal held "It is obvious from the undisputed evidence that the police practised a deceit not only upon the appellant, which is bad enough, but also upon the solicitor whose duty it was to advise him. In effect, they hoodwinked both solicitor and client. That was a most reprehensible thing to do." As the confession was the only evidence the conviction was quashed.

Case law

Charles v Crown Prosecution Service (26 November 2009)

Charles v Crown Prosecution Service [2009] EWHC 3521 (Admin) (26 November 2009) This was an appeal by way of case stated against a conviction of driving with excess alcohol. The appellant was arrested in the early hours of the morning . He was slumped over the steering wheel of the car. The parking lights were on, the keys were in the ignition and he was asleep. He was arrested, it is important to note, for being in charge of a motor vehicle whilst under the influence of drink or drugs. He took a breath test, just under an hour later, in connection with an investigation of being in charge of that vehicle whilst unfit through drink. The lower specimen of the two specimens he provided showed 74 micrograms of alcohol in 100 millilitres of breath. The custody record showed that the appellant was informed that he would be charged. That was found as a fact by the justices. Despite that information, and contrary to the Code of Practice under the Police and Criminal Evidence Act 1984, he was then interviewed. It is plain from the written record of the interview the appellant was not informed of the offence for which the police were investigating him at the outset of that interview. On the contrary, he was asked to say in his own words exactly what had happened. He did so. Half way through the interview, without being informed that he was being investigated for some other offence, he was asked whether he was driving the car and he said that he was. Accordingly at the close of the interview he was charged not with being in charge of a vehicle while unfit but driving while under the influence, thus rendering him liable to compulsory disqualification as opposed to discretionary disqualification. Held: in answer to the question whether the justices were right in law in ruling the evidence of the interview was admissible, the answer should be no.

Girma & Ors, R. v (Rev 1) (15 May 2009)

Girma & Ors, R. v (Rev 1)] [2009] EWCA Crim 912 (15 May 2009) The fundamental issue in the appeals against conviction was whether the plea of guilty of a co-defendant to count 2 on the indictment was rightly admitted in the trial of the others; if not, whether in any case the safety of the conviction was affected. A similar but secondary issue arose in respect of the admission of convictions in an earlier trial ("the Kingston trial"). In Smith R v [2007] EWCA Crim 2105], this court considered the admissibility of a co-defendant's plea of guilty. That case involved the admissions of pleas of guilty to robbery and the production of a firearm with intent to commit robbery, in the case of a co-accused who was alleged jointly to be involved.

Held: We have concluded the admission of the co-defendant’s guilty plea did not in the circumstances affect the safety of these convictions.

The prosecution submitted that the convictions of the Kingston defendants should be admitted as part of the picture and explanatory evidence under section 102 of the Criminal Justice Act 2003. None of the appellants opposed the admission of those convictions. No doubt they did not because they did not think their cases would be prejudicially affected. Indeed, as part of her defence one of the defendant’s relied on the acquittal of one of the defendant’s at the in the Kingston trial.

The judge ruled the evidence admissible. He said it was unrealistic to exclude it. It enabled the jury to have a complete picture. It was part of the narrative. He appears to have admitted it under section 74. He said he would give a careful direction to the jury that they could not use the convictions to bolster the present case. In the event, he said nothing about them. No-one invited him to do so.

Held: As it seems to us, this is wholly peripheral. It may be (and it is unnecessary to decide) that absent agreement by the defendants, this was irrelevant evidence which should not have been admitted. However, its admission could not conceivably have prejudiced these appellants. It could not conceivably affect the safety of the convictions. We need say no more about it. The appeals against conviction are therefore dismissed.

Y, R v (25 January 2008

Y, R v [2008] EWCA Crim 10 (25 January 2008) A ruling relating to the admission of hearsay evidence, whilst properly labelled an evidentiary ruling, may also come within the type of rulings that could be appealed by the prosecution under section 58 Criminal Justice Act 2003. The ruling in this case related to a hearsay statement implicating the defendant, made by a co-defendant who had pleaded guilty to the charge.

R v Finch (15 January 2007)

Section 128 Criminal Justice Act 2003 inserted a new section 76A in the Police and Criminal Evidence Act 1984. A co-defendant’s confession in not admissible under section 76A Police and Criminal Evidence Act 1984, where the co-defendant has pleaded guilty and therefore is not charged in the same proceedings and not part of the trial. Subject to the usual tests being satisfied it can be admitted under the hearsay provisions. A co-accused who is no longer part of the trial process is a compellable witness.

R v Finch [2007] EWCA Crim 36; [2007] 1 Cr App Rep 33.

Times on Line Where a co-accused had pleaded guilty and did not stand trial with a defendant, the co-accused’s confession could not be used as evidence at that defendant’s trial.

Wahab & Anor, R v (26 June 2002)

Wahab & Anor, R v [2002] EWCA Crim 1570 (26 June 2002) Where defendant have been given appropriate and proper advice by his solicitor, such advice could not give any ground for the exclusion of a subsequent confession under Police and Criminal Evidence Act 1984, s 76(2)

Schenk v Switzerland

Schenk v Switzerland [1988] 13 EHRR 242. The applicant complained under Article 6 of the use in evidence against him of an unlawfully obtained recording of a telephone conversation. In dealing with that complaint the court said at 265 paragraph 46 -

"While Article 6 of the Convention guarantees the right to a fair trial, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law. The Court therefore cannot exclude as a matter of principle and in the abstract that unlawfully obtained evidence of the present kind may be admissible. It has only to ascertain whether Mr Schenke's trial as a whole was fair."

The court has never resiled from that assertion as to the primacy of national law in relation to the admissibility of evidence, and in that case no violation of Article 6 was established.

Teixeira de Castro v Portugal

Teixeira de Castro v Portugal [1988] 28 EHRR 101 In this case the undercover police officers approached a suspected small-scale drugs dealer to obtain hashish. They hoped that he would lead them to a larger supplier, but nothing came of that. The officers then indicated an interest in heroin, and he mentioned the applicant's name, as someone who might be able to find heroin. The dealer got the address of the applicant from someone else and they all went and parked outside the applicant's home. He then came out to their car. The officers asked him for 20 grams of heroin, and he agreed to get it and went off and did so. When he handed it over he was arrested. Entrapment, and the use of evidence obtained by entrapment ('as a result of police incitement'), may deprive a defendant of the right to a fair trial embodied in article 6. The evidence in this case fell short of establishing actual incitement or instigation of the offences.

Hallsworth R v (3 April 1998)

Hallsworth, R v [1998] EWCA Crim 1185 (3rd April, 1998) There were three grounds relied upon all aimed at demonstrating that the judge was wrong to admit the evidence of recorded telephone calls. Held: What took place was not an interview; the Code of Practice did not apply, and there was an incontrovertible record in the form of a tape recording at least in respect of the telephone conversations upon which the Crown intended to rely. The evidence was strongly probative of guilt. That had he known the true position the appellant would not have said what he did is beyond question but that of itself does not meet the test of unfairness. Nor does the fact that the evidence was obtained through a participating informant. Consequently we have come to the conclusion that this appeal must be dismissed.

R v Latif (18 January 1996)

R v Latif [1996] UKHL 16 (18 January 1996)

Smith, R. v (26 July 2007)

Exclusion of co-accused’s conviction

Smith, R. v [2007] EWCA Crim 2105 (26 July 2007) Where the co-defendant' conviction is admitted under section 74 it is, by the terms of the statute itself, evidence that the person convicted did commit the offence. That is also how any jury would understand it. If a person has admitted an offence, that is obviously evidence that that person did it. The girl's plea [co-defendant] of guilty was, accordingly, not merely evidence that she had pleaded guilty: it was evidence that she was guilty. Para 22. Held: We have referred to the potential unfairness of admitting the conviction. We need to address the question of whether there were powerful countervailing reasons why it should be admitted. We conclude that there was really no occasion for it at all. There was no need to put in this conviction to show that there was a theft; that was admitted by the appellant. The judge appeared to advert to the advantage to the jury of knowing what the co-defendant's position was. That, we anticipate, is perhaps a reference to the difficulties which can sometimes arise if juries worry about why somebody who is an obvious defendant is not there to be tried by them. It is an argument sometimes referred to as the desirability of demystifying the position for the jury. The demystification argument is, as it seems to us, always a dangerous one. It did not, however, arise in this case.

Attorney General's Reference No. 3 of 1999

Attorney General's Reference No. 3 of 1999 [2000] UKHL 63; [2001] 2 WLR 56 (14th December, 2000)

In Kuruma v. The Queen [1955] A.C. 197, 203 Lord Goddard stated:

"In their Lordships' opinion the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained. While this proposition may not have been stated in so many words in any English case there are decisions which support it, and in their Lordships' opinion it is plainly right in principle."

And in Fox v. Chief Constable of Gwent [1986] A.C. 281, 292 Lord Fraser of Tullybelton stated:

"It is a well established rule of English law, which was recognised in Reg. v. Sang, that (apart from confessions as to which special considerations apply) any evidence which is relevant is admissible even if it has been obtained illegally."

R v Horseferry Road Magistrates Court, ex p. Bennett

R v Horseferry Road Magistrates Court, ex p. Bennett (No. 1) [1993] UKHL 10 (24 June 1993) House of Lords made it clear that the High Court or the Crown Court can enquire into the question of how the defendant was brought into the jurisdiction, and can stay proceedings where extradition procedures have been outflanked. Lord Griffiths at 62A held that the power to do arose -

"because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour which threatens either basic human rights or the rule of law."

Attorney General's Reference AG 3/2000

Attorney General's Reference AG 3/2000 [2001] EWCA Crim 1214 (17th May, 2001)

Loosely, R v

Loosely, R v. [2001] UKHL 53 (25th October, 2001)

R v P and Others

R v P and Others House of Lords 8 June 2000 OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE

Khan v. The United Kingdom

Khan v. The United Kingdom - 35394/97 [2000] ECHR 195 (12 May 2000)

Mason & amp; Ors, R v

Mason & amp; Ors, R v [2002] EWCA Crim 385 (13th February, 2002)

R. v Sang

In R. v Sang [1979] UKHL 3 (25 July 1979) Lord Diplock stated two propositions:

"(1) A trial judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value.

Chalkley & Anor, R v

Chalkley & Anor, R v [1997] EWCA Crim 3416 (19th December, 1997)

Shannon, R v

Shannon, R v [1999] EWCA Crim 1535 (26th May, 1999)

Callaghan, R (5th March, 1999)

Callaghan, R v [1999] EWCA Crim 606 (5th March, 1999) In R v Smurththwaite & Gill (1994) 98 Cr. App. R. 437 Lord Taylor C.J., referring to the judgements in Sang pointed out that their Lordships in that case had made it clear that a Judge does have an over-all discretion to exclude evidence in order to secure a fair trial. Thus, Lord Diplock at page 290 and page 436G said:

“........the function of the Judge at a criminal trial as respect the admission of evidence is to ensure that the accused has a fair trial according to law. It is no part of a Judge’s function to exercise disciplinary powers over the police or prosecution as respect the way in which evidence is to be used at the trial is obtained by them. If it was obtained illegally there would be a remedy in civil law; if it was obtained legally but in breach of the Rules of Conduct for the police, this is a matter for the appropriate disciplinary authority to deal with. What the Judge at the trial is concerned with is not how the evidence sought to be adduced by the prosecution has been obtained, but how it is used by the prosecution at the trial.”

Maynard, R v (2nd April, 1998)

Maynard, R v [1998] EWCA Crim 1168 (2nd April, 1998) The police went to the appellant's home. She was cautioned before questions were put to her. In addition, a note was made of the main part of the questioning and she was asked to, and did, sign it. The principal defect in practice in what happened was that the appellant was not told that she was entitled to legal advice before she was asked crucial questions. The importance of a suspect being told about that entitlement has been emphasised in a number of cases and is, indeed, reflected in section 58 of the Act of 1984 itself. In Absolam (1989) 88 Cr App R 332 the conviction was quashed largely on the ground that the appellant had been interviewed without first being informed of his right to legal advice. In both Samuel [1988] QB 615 and Beycan [1990] Crim LR 185, that right of access to legal advice was described as "fundamental". In the present case “….no solicitor was present and at no stage in this conversation at the house was the appellant told that she had a right to free legal advice and that the questioning could be delayed for her to obtain such advice. There was a clear breach of paragraph C:11.2 of the Codes, and, indeed, of the other provisions which spell out this same requirement.” ….. “But when there is a confession by a woman on her own in these circumstances, emerging from an interview, when there has been no prior statement that she is entitled to legal advice before she answers any questions of the kind to which we have referred, this Court finds it impossible to conclude, on the facts of this case, that the prosecution could have discharged the burden resting on it under section 76. It could not be shown beyond a reasonable doubt that this confession was not obtained in such circumstances as to render it unreliable. In our judgment the questions and answers in the house ought not to have been admitted.”

Nelson & Rose, R v (3rd April, 1998)

Nelson & Anor, R v [1998] EWCA Crim 1183 (3rd April, 1998): N was stopped by customs officers and asked a number of questions. She was not cautioned. The appellant submitted that the judge wrongly admitted evidence of the conversations with customs officers in the customs hall prior to arrest and caution. Held: the judge should have excluded the whole of the interview under section 77 of PACE. However, the question whether the failure to exclude that evidence rendered the conviction unsafe cannot be divorced from the question whether the judge also erred in failing to exclude the evidence of the two tape recorded interviews which were conducted after caution on the two days following the interview in the Green Channel. The court disagreed and referred to the judgment in the case of R v Neil 1994 Crim LR 441 where the court held: Where there is a series of interviews and the Court excludes one on the grounds of unfairness, the question whether a later interview, which is itself unobjectionable, should also be excluded is likely to depend on whether the objections leading to the exclusion of the earlier interview were of a fundamental and continuing nature and if so, if the arrangements for the subsequent interview gave the Defendant a sufficient opportunity to exercise an informed and independent choice as to whether he should repeat or retract what he said in the excluded interview or say nothing. (see Archbold 1998, 15-469).

Beckford (1996) 1 Cr App R 94

In the case of Beckford (1996) 1 Cr App R 94 where a police officer stopped a driver and the questions he put to the driver Beckford included the following: "Question: Have you been drinking?

Answer: Yes.

Question: How much have you had to drink?

Answer: A few pints.

Question: How many?

Answer: Three."

The submission was that those questions were asked in breach of Code C:10 and should be excluded under section 78. The Court of Appeal said that the judge was entitled to conclude as he had, that it was not until the appellant had admitted that he had drunk about three pints that the police officer was required to administer a caution and rejected that ground of appeal.

R v Shah [1994] Crim LR 125

In R v Shah [1994] Crim LR 125, the appellant was stopped in the Green Channel by a customs officer who suspected that a briefcase had a false compartment containing drugs. He asked the appellant if the briefcase was his. The appellant said it was. “Was it new?” the appellant was asked and he answered “No”. He was then asked the question which gave rise to complaint in his appeal “how long have you owned it?” to which the appellant allegedly answered “two or three years”. The briefcase was then field tested which was positive for cocaine. There was then a further conversation evidence of which was excluded by the trial Judge. He was kept under surveillance and subsequently arrested.

Addressing paragraph 10.1 of the Code, Jowitt J, giving the decision of the Court stated at 4E:

“First, it is to be seen that paragraph 10.1 sets out an objective test. There must be grounds of suspicion. Secondly it is not enough that the questioner is suspicious. He must have grounds for that suspicion. Grounds, obviously, may fall well short of evidence which would support a prima facie case of guilt. Nonetheless, they must exist. A mere hunch or a sixth sense that something is not as it should be is not, in the view of this Court such as to provide the grounds for bringing the case within paragraph 10.1 of Code C. Moreover the grounds have to be such as to lead to suspicion, not simply that an offence has been committed, but committed by the person who is being questioned. It seems to this Court that, in any event, it was perfectly proper for Mr Campbell to ask the questions he did, and to which objection was taken, about the ownership of the briefcase. In our judgment, at that time when he asked those questions, Mr Campbell had no grounds for suspicion. Mr Campbell had no grounds to suspect that an offence had been committed by the appellant. Accordingly, there was no need for a caution and we agree with the Learned Judge’s ruling that the evidence should be admitted”.

R v Neil 1994 Crim LR 441

In R v Neil 1994 Crim LR 441 where police officers took a witness statement, N signed it and was then cautioned, arrested and kept in custody overnight. The following day he was interviewed. The Trial Judge excluded the witness statement on account of breaches of the Codes of Conduct, but did not exclude the subsequent interview. The Court of Appeal, allowing the appeal, held that whether a later interview should be excluded is a matter of fact and degree. It is likely to depend on whether the objections leading to the exclusion of the first interview were of a fundamental and continuing nature, and if so, if the arrangements for the subsequent interview gave the defendant a sufficient opportunity to exercise an informed and independent choice as to whether he should repeat or retract what he said in the excluded interview or say nothing (see Archbold 1998, 15-469).

Senior & Anor, R v (04 March 2004)

Senior & Anor, R v [2004] EWCA Crim 454 (04 March 2004)….. When objection is taken in cases of this kind on the basis that Code C has been breached, it must be adjudicated on the merits of the individual case rather than by rule of thumb. By the same token, however, it would be incorrect to proceed on the basis that, simply because two persons are apparently travelling together and one may be seen to help the other with a bag which is known to contain drugs, both are involved in the offence of fraudulent evasion. In principle, it seems to us that it will usually be right to seek by questions to both persons to establish who is the custodian of the bag and in an appropriate case the circumstances in which he or she is in possession of it. This is another case where it was held that there had been a breach of Code C, but that this did not justify exclusion of evidence under s.78(1) of PACE.

Rouf, R v (13th May, 1999)

Rouf, R v [1999] EWCA Crim 1356 (13th May, 1999) This is another case where it was held that there had been a breach of Code C, but that this did not justify exclusion of evidence under s.78(1) of PACE

Bryce R (26 June 1992)

Bryce R [1992] 4 All ER 567, 95 Cr App Rep 320 In that case the Court of Appeal held that an interview between the appellant and an undercover police officer was tantamount to an interview and consequently covered by the Code of Practice. There was no reliable record of what had been said and consequently no means of showing by a neutral, reliable record, what was or was not said.

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