This chapter focuses on prosecution evidence that is relevant but improperly obtained and consequently may be excluded by judicial discretion. It looks at the exclusionary discretion contained within s78 of the UK’s Police and Criminal Evidence Act 1984 (PACE) and explains how common law and statutory exclusionary discretion may be exercised in relation to other areas of evidence, such as character evidence and hearsay evidence, as well as confessions. The chapter also looks at the most common areas of exclusion, other than confession evidence, including breach or evasion of legislation such as PACE and the Codes of Practice. Police undercover activity is examined. Consideration is given to when a stay of prosecution might be the appropriate procedure. Finally, it discusses the relevant principles of Art 6 of the European Convention on Human Rights (ECHR) that are enshrined in s78 of PACE.
Chapter
This chapter focuses on evidence that is relevant but improperly obtained and thus may be excluded by judicial discretion. It looks at the exclusionary discretion contained within section 78 of the UK’s Police and Criminal Evidence Act 1984 (PACE), and explains how common law and statutory exclusionary discretion may be exercised in relation to other areas of evidence, such as character evidence and hearsay evidence, other than confessions. The chapter also looks at the most common areas of exclusion, other than confession evidence, including breach or evasion of legislation such as PACE and the Codes of Practice. It also reviews when a stay of prosecution might be the appropriate procedure. Finally, it discusses the relevant principles of Article 6 of the European Convention on Human Rights (ECHR) that are enshrined in section 78 of PACE.
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The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and diagrams and flow charts. This chapter covers three areas: confessions, silence of the accused and judicial discretion to exclude improperly obtained prosecution evidence. It explains how the most persuasive, sometimes only, evidence available to the prosecution is a pre-trial confession. While confessions have long been accepted as evidence of guilt, they have also posed risks of unreliability and violation of individual autonomy. Defendants may not be making a true confession or may have been obtained as a result of pressure. Permissible inferences from a pre-trial failure to respond to questions has the crucial difference that such failure alone cannot found a conviction. English law has previously been unwilling to acknowledge the case for excluding evidence which involves the police acting improperly or even illegally.
