Confessions and unlawfully or unfairly obtained evidence.docx

***[Confessions and unlawfully or unfairly obtained evidence -- 3 Q]*** The following are the specific statutory provisions with which students should be familiar (and able to refer to by section number): **section 76 and section 78** of the Police and Criminal Evidence Act 1984. ***[What are conf...

***[Confessions and unlawfully or unfairly obtained evidence -- 3 Q]*** The following are the specific statutory provisions with which students should be familiar (and able to refer to by section number): **section 76 and section 78** of the Police and Criminal Evidence Act 1984. ***[What are confessions? ]*** 'confession', includes **any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise**. The general rule as stated in the **PACE 1984, s. 76**, is that a confession made by an accused person is admissible insofar as it is relevant to any issue in the proceedings and is not excluded on the grounds of oppression or in consequence of anything said or done conducive to unreliability (s. 76(2)). The rule of admissibility has been extended to operate not only in favour of the prosecution but also for a co-accused. Section 82(1) makes it clear that 'confession' covers statements such as an informal admission to a friend or colleague, and is not limited to statements made to a person in authority, such as a police or customs officer. Most confessions are, however, made to persons in authority, and such confessions are the most likely to be challenged. It should follow from the **definition of 'confession' in s. 82(1), and from the provision in s. 76(1) (see F18.8) that only a confession made 'by' an accused may be given in evidence 'against him',** that [where the only proof that the accused made the statement comes from the confession itself it should not be admitted]. Where a **passenger in a car gave D's personal details to a police officer when asked for his own, the statement was admissible as a 'confession' by D, who denied being the passenger.** It is submitted that **while this is a useful device for admitting a common form of evidence of identification, it was not a confession 'by' D unless the identity of the maker was shown to be D, which was the very point in dispute.** The Court considered that the **jury should be given a 'clear direction' in such cases not to rely on the statement unless they were sure, from its contents and such surrounding evidence as there was, that it was the appellant who made the statement.** There is still an element of circularity in using the content to identify the maker, and the problem might be circumvented by treating the statement simply as a form of hearsay that might be admitted in the interests of justice under the CJA 2003, s. 114(1)(d) A **statement disclosing the identity of a driver was admissible as a confession if it could be inferred that the accused had written it**, even though it was unsigned. ***[What about guilty pleas and pleas in mitigation? ]*** A plea of guilty constitutes a confession for the purposes of the PACE 1984, s. 82(1). Where such a plea has been retracted, the court may decide that it should not be given in evidence by the prosecution because of the adverse effect on the fairness of the proceedings, invoking s. 78. A retracted plea of guilty may also, where relevant, be relied upon as a confession by a co-accused (see F18.27), to which the court's power of discretionary exclusion under s. 78 does not apply. An **admission made by an accused in other proceedings would similarly constitute a confession for the purposes of the 1984 Act, and could be relied upon provided, as is likely, that it complies with the provisions of s. 76(2)** and (which may be more doubtful) that it is not excluded under s. 78. Such evidence would not have been admitted at common law. **A plea in mitigation made by counsel on behalf of a client who has been convicted following a plea of 'not guilty' should not be understood as a confession by the convicted person through counsel.** So, to regard mitigation would be both unjust and unrealistic, as it is counsel's duty to accept the verdict and seek to mitigate the consequences. The same must be true if the convicted person advances the mitigation in person. ***[Confession otherwise than in words? ]*** - Inclusion in s. 82(1) of the expression 'whether made in words or otherwise' suggests that 'confession' may, in addition to admissions in oral or written form, include conduct such as a nod of acceptance of an accusation or a 'thumbs-up' sign which may be properly regarded as a 'statement' in sign language. D, who had previously made a full confession to the police, agreed to take part in a filmed re-enactment of the crime with which he was charged, which was the murder of a woman by strangulation. He gave a running commentary explaining his movements, which he demonstrated on a woman police officer who played the part of the victim. At trial, his account of the killing was entirely different. It was held by the Privy Council (applying common-law principles) that the re-enactment was to be regarded as a confession. Such a film would also constitute a confession under s. 82(1), and may be given in evidence, provided that the conditions of admissibility under the 1984 Act are satisfied. Confessions made by two of the accused were excluded following allegations of police misconduct. It was held that **the same allegations were relevant to the admissibility of the conduct of the two in showing the police where they had hidden the murder weapon.** It is submitted that conduct, which is not intended to convey guilt, but which may be interpreted as doing so, is not a 'statement' and hence not a confession. Thus, for example, driving away at speed from the scene of an accident is not a confession to which the 1984 Act applies, though evidence of such conduct would be relevant and admissible. ***[What about partly or wholly exculpatory statements? ]*** - A confession may be 'wholly or partly adverse' to the maker, with the result that a so-called 'mixed statement', which is part confession and part exculpation, is a confession for the purposes of the PACE 1984. - Whether **words amount to at least a partial confession is a question of fact separate and distinct from the question (where this is also in dispute) whether the words in question were spoken at all.** The issue was whether D could rely on a statement made by R, an erstwhile co-accused, under the PACE 1984, s. 76A. Court of Appeal **identified as suitable for full argument the question whether statements made by R in police interviews which went beyond admissions and were exculpatory of D constituted 'confessions' for the purposes of s. 82(1).** Hughes LJ said that not everything stated at the time of a partial admission is necessarily part of a 'confession'. That an out-of-court statement made by co-accused D1, in which he admitted his presence at the scene of a murder but blamed co-accused D2 for the killing, was not admissible under the PACE 1984, s. 76A, at the behest of co-accused D3 (whose defence was that D2 alone committed the crime). **The admission of presence, though a partial confession by D1, was not of itself relevant to D3's defence, while the allegation that D2 was guilty was not part of the confession.** ***[Principles of Admissibility under the Police and Criminal Evidence Act 1984, s. 76]*** In **any proceedings a confession made by an accused person may be given in evidence against him insofar as it is relevant to any matter in issue in the proceedings** and is not excluded by the court in pursuance of this section. If, in **any proceedings where the prosecution proposes to give in evidence a confession** made by an accused person, it is represented to the court that the **confession was or may have been obtained---** a. **by oppression of the person who made it; or** b. in **consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof.** the court shall not allow the confession to be given in evidence against him **except insofar as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.** In any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, **the court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in subsection (2) above**. CJA 2003, s. 128, added s. 76A to the PACE 1984 in order to provide statutory regulation of the admission of the confession of a co-accused. The prosecution do not have to prove the admissibility of a confession upon which they rely unless either (a) the defence 'represents' that it is inadmissible under s. 76(2), or (b) the court of its own motion requires proof of admissibility under s. 76(3). If in either case the prosecution cannot prove admissibility beyond reasonable doubt, the confession must be excluded, notwithstanding that it may be true: the court has no discretion in the matter. it was said that a court should be particularly vigilant to scrutinise a confession that is the sole evidence relied upon by the prosecution. A confession which is inadmissible in criminal proceedings in consequence of s. 76 should not be used as the basis for a formal caution. ***[S76 (2) (a) -- What does oppression mean?]*** ***[S76 (8)]*** 'oppression' includes torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture). The 1984 Act does not follow the wording of earlier rules or decisions, nor is it expressed to be a consolidating Act. It is a codifying Act, i**n the interpretation of which the proper course is to start by ascertaining the natural meaning of the language used, uninfluenced by any considerations derived from the previous state of the law**. Much of the sort of treatment which would have fallen within the wider definition of oppression at common law will now fall to be dealt with under the 'reliability' head of exclusion. Prosecution tendered a confession by D in which she admitted her part in an insurance fraud initiated by her boyfriend. **D claimed that the confession was made in order to secure her release from custody after a police officer had revealed, to D's great distress, not only that her boyfriend had been unfaithful to her, but also that the 'other woman' was being held in the cell next to D's.** On the assumption that these revelations were made, the trial judge ruled that t**here was no oppression in the sense of 'something above and beyond that which is inherently oppressive in police custody ... \[importing\] some impropriety ... actively applied in an improper manner by the police'**. The Court of Appeal upheld the ruling of the trial judge. **'Oppression' was to be given its 'ordinary dictionary meaning'** of: 'Exercise of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of subjects, inferiors etc., the imposition of unreasonable or unjust burdens. Oppression almost inevitably involves some impropriety on the part of the interrogator. a police officer had given way to impatience during an interview and **had raised his voice and used bad language to D.** The Court of Appeal ruled that to regard such conduct as oppressive would be to give the word a completely false meaning. Unduly hostile questioning may, however, be oppressive: it is a question of degree. a tape recording of an interview with D revealed that he had been 'bullied and hectored'. The Court of Appeal commented that, **short of physical violence, it was hard to conceive of a more hostile and intimidating approach by officers to a suspect. The interview was oppressive and D's later confession ought to have been excluded** tactics similar to those employed in the above case appear to have been regarded as acceptable provided the reliability of the confession was not compromised. A degree of impropriety which is insufficient for oppression may serve to support an argument that a confession should be excluded under the PACE 1984, s. 76(2)(b) or s. 78. Court of Appeal, **while acknowledging the possibility that oppression might be present where access to legal advice is improperly denied, preferred to quash D's conviction by reference to s. 78.** Exclusion for oppression is likely to be reserved for those rare cases **where an accused has been subjected to misconduct of a deliberate and serious nature, and where the court is anxious to mark its disquiet at the methods employed.** An issue which frequently arises in relation to misconduct is the **extent to which the use of similar methods by the same officer in relation to other suspects may figure in cross-examination**. In relation to oppression, the court's natural reluctance to exclude on this basis may be overcome by the use of such evidence - Court of Appeal considered **that officers alleged to have tortured D could have been cross-examined to 'potentially devastating' effect had the subsequent findings of a court regarding a similar torture by the same officers on another man been available for use in cross-examination** Original investigation was conducted by officers also linked to Paris (1993) 97 Cr App R 99, the Court acknowledged that **police witnesses might be cross-examined as to whether they were part of a 'culture' of pressurising witnesses improperly**. ***[Does the character and attributes of the accused have any relevance? ]*** - At common law it was held that the nature of oppression varied according to the character and attributes of the accused. Thus, an 'experienced professional criminal' might expect a vigorous interrogation. A middle-aged man of previous good character had been subjected to a lengthy, and in certain respects unlawful, interrogation, which was subsequently held to have been oppressive. it might be oppressive to put questions to an accused who is known to be mentally ill so as 'skilfully and deliberately' to induce a delusionary state. took account of the fact that the person being questioned was 'an experienced merchant banker' and 'intelligent and sophisticated', in determining whether he had been questioned in an oppressive way. the Court, although of the opinion that the bullying and hectoring of D in interview would have been oppressive even with a suspect of normal intelligence, went out of its way to stress the effect on D, who was on the borderline of mental handicap. ***[S78 (2) (b) -- ]*** A confession should not be excluded simply on the basis that it was obtained in consequence of a threat or inducement, unless the circumstances were such that any resulting confession would be likely to be unreliable. Test -- - the trial judge to consider a hypothetical question: not whether this confession is unreliable, but whether any confession which the accused might make in consequence of what was said or done was likely to be rendered unreliable. Thus, the **court must consider whether what happened was likely in the circumstances to induce an unreliable confession to the offence in question**, and to ignore any evidence suggesting that the actual confession was reliable. An accused with a learning disability gave evidence at the voir dire in the course of which he admitted one of the offences with which he was charged. The trial judge was held to have **wrongly based his decision to admit D's out-of-court confession on the admission by D**. if acts are done or words spoken which are likely to induce unreliable confessions, then, whether or not the confession is true, it is inadmissible. - Although the judge may not be influenced by evidence that the confession is true in deciding admissibility, there is no rule against taking into account any other relevant evidence given at trial before the voir dire begins which assists in determining the questions posed by s. 76(2)(b) - Such evidence must, **however, relate to the period before, or at the time when, the confession is made**: the judge **must 'stop the clock' and consider the issue of reliability at that point in time.** Section 76(2) of the PACE 1984 obliges the **judge to consider everything said or done (usually, but not inevitably by the police) and not to confine the inquiry to a narrow analysis analogous to offer and acceptance** in the law of contract The use of the phrase 'anything said or done', and the inclusion of all the surrounding circumstances, are indications that a confession may be inadmissible, notwithstanding that the police have not behaved improperly. A psychopathically disordered woman of low normal intelligence heard her lover confess to a murder. **As this experience may have led her to make a false confession out of a child-like desire to protect her lover, her statement was excluded under s. 76(2)(b).** - Such a confession might also be excluded under s. 78 D's solicitor who, by intervening in the interview in an apparent attempt to secure a confession, rendered the resultant confession unreliable. where the solicitor provides proper legal advice to the client this will not normally be a basis for excluding a confession under s. 76(2)(b). it was the promise not to involve the police, held out by a shop manager, that gave rise to the inference that anything said in consequence was likely to be unreliable. **A confession volunteered without anything being said or done clearly cannot fall foul of s. 76(2)(b)** where an appropriate adult was the 'unwilling recipient of unsolicited confessions' by an accused, **and nothing was said either by the adult or anyone else that was likely to render the confession unreliable**. A confession cannot be rendered inadmissible under the PACE 1984, s. 76(2)(b), by reason only of something said or done by the accused. - D was interviewed on suspicion of conspiracy to supply controlled drugs. The admissions which he made were alleged by the defence to be (a) an attempt by him to get bail, and (b) tainted by the fact that he was a heroin addict who, having been in custody for some time, would have said or done anything, however false, to gain his release so as to feed his addiction. The **Court of Appeal considered that this argument was founded entirely 'on what was said or done by the appellant himself and on his state of mind', and that this was beyond the scope of the provision.** Police officers interviewed D, a heroin addict, who it subsequently transpired was suffering from withdrawal symptoms. It was noted that in Goldenberg it was D himself who had requested the interview, but t**his was thought not to provide a ground for distinguishing the case, for it was doubtful whether the requirement for something external to be 'said or done' could be satisfied by the mere holding of an interview with an addict in withdrawal.** **Issue of whether D had taken cocaine before confessing had a material bearing on admissibility, but this appears to have been achieved by regarding the impairment of the accused as one of the 'circumstances' referred to in s. 76(2)(b).** A self-induced incapacity is clearly relevant to the issue of discretionary exclusion under the PACE 1984, s. 78 ***[Does something said or done include breach of PACE codes? ]*** It is common for the defence to allege that the 'something said or done' includes a breach by the police of an obligation under the PACE 1984 or the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers. - Such a breach will not lead to automatic exclusion of a confession obtained in consequence. - Though it may, on its own or together with other factors, provide evidence that s. 76(2)(b) has not been complied with. D, whose **psychological make-up was such that he was likely to feel unusual pressure to escape from interrogation, alleged that he had been induced to confess by a suggestion that the serious indecent assault of which he was suspected was more deserving of treatment than punishment.** The interview was not recorded until the following day, in breach of Code C, and the **Court of Appeal held that the absence of a reliable record of what occurred 'deprived the court of what was, in all likelihood, the most cogent evidence as to what did indeed happen during those interviews and what did induce the appellant to confess'.** The breach was therefore significant, in that, the burden of proof being on the prosecution, the speculation necessarily engendered by the breach was sufficient to tip the scale in favour of the defence. For other cases where confessions were excluded, a. Failure to caution and to maintain a proper interview record or to show it to D); Questioning before allowing access to a solicitor and failure to show note to D or subsequently to his solicitor b. Improper questioning after charge resulting in ambiguous and potentially unreliable answer c. the 'spirit of the Code' was broken when a juvenile's estranged father was insisted on by police as the appropriate adult to attend her interview d. juvenile's father acting as 'appropriate adult' and subsequently discovered to have low IQ and to be incapable of appreciating the gravity of the situation in which D found himself e. failure to give any guidance to a clergyman acting as appropriate adult may have inhibited him from taking steps to question the way in which the confession had been obtained f. Suspect of low intelligence interviewed nine times during a lengthy period of detention; access to legal advice improperly denied and no independent person present at interview. ***[Exclusions under s78 -- ]*** a. In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given 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. b. Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence The power may be used in respect of confession evidence tendered by the prosecution. The Court of Appeal will not interfere with the exercise of a trial judge's discretion to admit evidence under s. 78 unless satisfied that the decision was perverse. It is for an accused to persuade the court that the evidence of a prosecution witness ought to be excluded under s. 78 and that the burden is 'no higher than the balance of probabilities. ***[S78 and exclusions based on PACE ]*** Breach of a relevant code provision does not lead to the automatic exclusion of a confession obtained in consequence (see, e.g., Delaney (1988) 88 Cr App R 338, where the Court of Appeal heard submissions on ss. 76 and 78, and it was held that 'the mere fact that there has been a breach of the PACE Codes does not of itself mean that evidence has to be rejected' The question is **whether 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.** Even a plain and admitted breach, though it is to be deplored, may fail to trigger exclusion if it does not operate in a way prejudicial to the accused That breach of a PACE Code C provision **designed to protect another suspect could not be prayed in aid by the accused.** This was because there was no causal link between the breaches and D's admission. On the facts, however**, had the Code been complied with, it might have resulted in a record which would have supported D's contention that the other accused, to whom D subsequently confessed, was acting in the role of police agent in soliciting the confession**. It is submitted that the i**ssue is not whether the breach against the other accused caused the confession by D (as plainly it did not) but whether the breach affected the fairness of using D's confession** (which it may have done). Court of Appeal stated that it was undesirable to give any general guidance on the way in which the discretion under s. 78 or under the judge's inherent powers should be exercised, because circumstances may vary infinitely. Without seeking to give any such general guidance, it is submitted that the following considerations have proved to be of importance where s. 78 is concerned -- 1. ***[Nature and extent of breach -- ]*** D was denied access to legal advice, and it was common ground that there had been a breach of the PACE 1984, s. 58. "if there are significant and substantial breaches of section 58 or the provisions of the code, then prima facie at least the standards of fairness set by Parliament have not been met. So far as a defendant is concerned, it seems to us also to follow that to admit evidence against him which has been obtained in circumstances where these standards have not been met, cannot but have an adverse effect on the fairness of the proceedings". This does not mean, of course, that in every case of a significant or substantial breach of section 58 or the code of practice the evidence concerned will automatically be excluded. Section 78 does not so provide. 2. ***[Breach of right to legal advice -- ]*** Supreme Court considered that it was not necessary to apply the same strict principles to the questioning of a person not yet detained: whether there was a breach of Article 6 in such a case would depend on the circumstances. **Strasbourg --** The key questions are said to be - whether there existed compelling reasons for the restriction of access, and - whether, viewing the proceedings as a whole, the trial was fair. D's convictions for assisting an offender and failing to provide information about acts of terrorism. While domestic courts would usually follow a clear and constant line of Strasbourg decisions, this should be viewed as guidance rather than a straitjacket. The degree of constraint the Strasbourg jurisprudence imposes is context-specific, and in any case the finding of the Grand Chamber regarding the absence of 'compelling reasons' was in the nature of a finding of fact rather than part of the Court's jurisprudence. - even after D had been informed of his right to legal advice he affirmed the truth of the relevant statement in a later interview, and the safety of the conviction was also supported by the evidence that had come to light as a result, which was not regarded as inadmissible in English law even if the confession is excluded. Where legal advice is waived, the waiver should be voluntary, informed and unequivocal. D was denied access to legal advice by officers who had genuinely misconstrued the provisions of s. 58. D admitted in evidence that he was able to cope with being interviewed, that he had been given and understood the caution, and that he was aware of his legal rights. However, he had requested legal advice in order to have a check on the conduct of the police during interview. The trial judge found that the interviews were properly conducted, and that the only function of legal advice would have been to remind D of rights of which he was already well aware. On these facts, the Court of Appeal held that there was no obligation to exclude the confession. Failure to inform D, a foreigner, of his right to advice was particularly significant in the light of his lack of familiarity with police procedures and meant that his confession ought to have been excluded. Minor defects in the communication of the right to legal advice that do not bear on the exercise of informed choice by the suspect cannot give rise to unfairness. ***[Breach of Interview procedures -- ]*** - Breaches of the various provisions of Code C regarding the procedures to be followed when interviewing suspects have also tended to lead to the exclusion of evidence under the PACE 1984, s. 78. Said to be desirable that the **provisions of Code C which are designed to ensure that interviews are fully recorded and the suspect afforded an opportunity to contest the record be 'strictly complied with', and that the courts would not be slow to exclude evidence obtained following 'substantial breaches' by the interrogator**. - breach does not automatically result in exclusion. The statement indicates the way the courts should approach such breaches. evidence of a conversation with a police officer in Portuguese should have been excluded because of the attendant risk of misunderstanding. Other provisions which have been held capable of requiring or contributing to the exclusion of evidence are those relating to cautioning, - D was questioned without caution while injured in hospital in circumstances where, viewed objectively, he was already a suspect and not (as the questioning officer thought) simply the victim of an assault by another. Breach of the right to have an appropriate adult present at interview is also likely to trigger exclusion - it was noted that the denial of the right to an appropriate adult might also lead to the failure of the accused to recognise the need for legal advice. A waiver in these circumstances would be worthless. Right of the accused to know why he has been arrested and 'at least in general terms the level of the offence in respect of which he is suspected' was held sufficient to warrant the exclusion under s. 78 of a confession to theft of a handbag where D was not warned that he was also under suspicion for the more serious offences of robbery from the same victim and of her manslaughter. The failure of the interrogator to appreciate that questioning a suspect amount to an 'interview' within the meaning of that term in Code C has proved an important peg on which to hang arguments for exclusion, as such failure frequently leads to a multiplicity of relevant breaches of Code C. - breaches including failure to caution, to record, and to offer legal advice prior to impromptu questioning by custody officer: confession should have been excluded. - Informal questioning in D's own home amounting to interview which ought to have taken place only in a police station, inadequate recording and late caution: confession should have been excluded. - inadequate recording and failure to ensure presence of appropriate adult at conversation in police car amounting to interview: confession should have been excluded - questioning by customs officer during search of D's bag conducted without caution or other incidents of an interview in order not to excite D's suspicion that the drugs in his luggage had been detected: questioning still an interview and confession should have been excluded for breaches. - D believed he was assisting officers to find drugs importers and was not aware of the significance of his own incriminating statement, taken without caution, until two months later: statement should have been excluded as arising out of an interview not under caution, and because no record was shown to D. - Officers of the Inland Revenue investigating tax fraud did not appreciate that they were required to comply with the code when conducting a 'Hansard' interview. In holding the resultant evidence admissible, the Court of Appeal took account of the fact that the defendants were fully aware that their answers might render them liable to criminal proceedings. - A police officer unfamiliar with health and safety legislation spoke to D about an explosion in which D had been burned and another man killed. D was, at the time, in shock and breathing with the assistance of an oxygen mask, having been given the maximum possible dose of morphine. The officer's failure to realise that D was a suspect rather than a mere witness was immaterial: a view to that effect should have been formed, the interview should not have taken place as it did and the fruits of the interview should have been excluded. ***[When will breach of PACE not trigger exclusion? ]*** Although the provisions regarding the conduct of interviews are of great importance, breaches may nevertheless occur which are **insufficiently significant or substantial to trigger the PACE 1984, s. 78** - The decision of the trial judge not to exclude evidence of a confession was upheld where the breach concerned the failure of a police officer to show the suspect a note of a conversation which the suspect had asked to be kept 'off the record'. Alternatively, a breach may be more than technical, but in the particular circumstances of the case no unfairness results from admitting the evidence. - The failure of the interviewer to observe the provisions designed to prevent fabrication of the interview record would have been regarded as sufficient to require exclusion but for the fact that D's solicitor's clerk was present during the alleged conversation. It was held that it was legitimate for the trial judge to take account of this factor in exercising his discretion to admit the confession, as the presence of the clerk would have been likely to inhibit fabrication, and provided the accused with a witness as to what was actually said. - Two suspects had wrongly been held incommunicado but it was held that the fact that one of them had subsequently had access to a solicitor for half an hour before signing the notes of his interview justified the admission of his confession. - even if the failure of a police inspector to caution a fellow officer was, on the facts, an error (which it was held not to be), **it could not have been unfair to admit the incriminating response, both because the person questioned was himself a police officer and because of his willingness to repeat the same matters shortly afterwards under caution**. - failure to determine at trial whether there was sufficient evidence on which to caution a traveller in whose bags drugs were found at Customs was not fatal --- even if a caution had been required, those stopped and questioned in a Customs check are already aware of the formality of the occasion ***[What about bad faith? ]*** - It is not the function of the court to use the PACE 1984, s. 78, to discipline the police. - The presence of bad faith where the police have acted in breach of the Act or Code is a factor making it more likely that evidence will be excluded. There is a **distinction to be drawn between cases where the police have acted in bad faith, and cases where the police, albeit in good faith, have fallen foul of s. 58**. In the former case, a court would have 'little difficulty in ruling any confession inadmissible under s. 78'. In the latter**, the evidence would still fall to be excluded in many cases, so that the police should use their powers of delaying access to a solicitor only with great circumspection**, but it was not possible 'to say in advance what would or would not be fair'. Breaches which are in themselves significant and substantial are not rendered otherwise by the good faith of the officers concerned.' A **submission was made that, in the absence of impropriety,** the **discretion should never be exercised to exclude admissible evidence.** The Court of Appeal had 'no hesitation in rejecting that submission, **although the propriety or otherwise of the way in which the evidence was obtained is something which a court is, in terms, enjoined by the section to take into account'.** ***[Admissibility of confessions -- Voir Dire ]*** **[S76 --]** At common law, where the **admissibility of a confession statement was to be challenged in a trial on indictment, the following practice was followed**: a. The **defence advocate would notify the prosecutor that an objection to admissibility was to be raised.** b. The **prosecutor would then refrain from mentioning the statement in opening to the jury.** c. At the appropriate time **the judge would conduct a trial on the voir dire to decide on the admissibility of the statement** The voir dire therefore remains the correct procedure where **objection is taken to the admission of a confession.** It enables **factual issues to be resolved in the absence of the jury, with the benefit of the accused's evidence should the accused wish to testify** (Alagaratnam \[2010\] EWCA Crim 1506 ). At common law the voir dire was normally held in the absence of the jury only at the request or with the consent of the defence. However, **it has now been established that the court may require the jury to withdraw whether the defence consent or not.** 'a statement by responsible counsel, upon the basis of documents or proofs of evidence in his possession at the time of speaking' that the confession was or may have been obtained in breach of s. 76 is a 'representation'. **s. 76 requires magistrates conducting a summary trial to hold a voir dire to determine admissibility where the defence, before the close of the prosecution case**, represent to the court that the confession was obtained in breach of s. 76(2). court's power under s. 76(3) to require the prosecution to prove that the confession was not obtained in breach of s. 76(2) may lead the court to hold a voir dire in circumstances where counsel has not requested it. This would seem to be a power that should be sparingly exercised. ***[S78 -- ]*** Wording of the section suggested that **defence objections should be made before the confession is given in evidence.** The relevant words are 'the court may refuse to allow evidence on which the prosecution proposes to rely to be given'. **It does not necessarily follow from this that a voir dire should always be held**; indeed, it has been said that in a **summary trial the defence have no right to a voir dire simply in order to determine a preliminary issue under s. 78.** it will be convenient to investigate the submission in this way, particularly where the defence also challenge the confession under s. 76. That if, in connection with an application to exclude evidence under s. 78 alone, the accused wished to proceed by way of a trial within a trial, magistrates might find it necessary to proceed in that way in order to **allow the accused to give evidence in relation to the evidential issue without prejudicing the right to silence at trial**. Ruling in a preparatory hearing regarding s. 78 was a ruling as to admissibility of evidence under the CPIA 1996, s. 31(3) (see D15.58 to D15.61), and that it was subject to appeal to the Court of Appeal. if the application of s. 78 goes to the heart of the proceedings it may be convenient to deal with it as an interlocutory matter. ***[What confessions are excluded at trial? ]*** S128 -- Subject to subsection (1), nothing in this Chapter makes a confession by a defendant admissible if it would not be admissible under section 76 of the Police and Criminal Evidence Act 1984. The reference to 'this Chapter' is to Chapter 2, Hearsay Evidence, which contains the exceptions to the hearsay rule. The clear intention is to ensure that alternative exceptions are not invoked in order to admit confessions that fail to satisfy s. 76. The most obvious is CJA 2003, s. 114(1)(d), (the 'interests of justice' exception). ***[What is the effect of evidence yielded by inadmissible confessions? ]*** ***[S76 -- ]*** The fact that a confession is wholly or partly excluded in pursuance of this section shall not affect the admissibility in evidence--- a. of **any facts discovered as a result of the confession**; or b. where the **confession is relevant as showing that 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. Evidence that **a fact to which this subsection applies was discovered as a result of a statement made by an accused person shall not be admissible unless evidence of how it was discovered is given by him or on his behalf**. Subsection (5) above applies--- a. to **any fact discovered as a result of a confession which is wholly excluded in pursuance of this section**; and b. to **any fact discovered as a result of a confession which is partly so excluded, if the fact is discovered as a result of the excluded part of the confession**. D made a **full confession to receiving stolen goods, in consequence of which the goods were found concealed in her bed**. The confession was ruled inadmissible, but the prosecution were allowed to prove the discovery of the stolen property. It was held that the **principle requiring the rejection of certain confessions in evidence 'has no application whatever as to the admission or rejection of facts, whether the knowledge of them be obtained in consequence of an extorted confession, or whether it arises from any other source; for a fact, if it exists at all, must exist invariably in the same manner, whether the confession from which it is derived be in other respects true or false'**. Some difficulty may arise as to where the 'confession' ends and 'facts discovered as a result of it' begin -- - Documents delivered up by D as a direct result of an inducement were treated as the equivalent of confession evidence and excluded accordingly. It does not seem entirely satisfactory to regard conduct such as that in Barker as the **equivalent of a 'statement' by the accused 'in consequence of anything said or done' under s. 76(2)(b) for the purposes of the 1984 Act**, and such evidence would seem to be more correctly considered as admissible evidence of facts which, like all prosecution evidence, may in appropriate circumstances be excluded under s. 78 of the 1984 Act. **D was charged with the murder of a woman, part of whose body was found in a parcel together with a handwritten note bearing the legend 'Bladie Belgiam'**. **D, who had not been cautioned, was asked by the police to write the words 'Bloody Belgian', which he did, misspelling them in precisely the same fashion as the writer of the note**. The case **did not concern an inadmissible confession**, but the principle involved in the reception of the note in evidence was said by Lush J to be that 'it cannot make any difference to the admissibility of handwriting whether it is written voluntarily or under compulsion of threats'. Cars had been damaged by scratching an obscene message to the owner, whose name was Justin, but which the vandal had spelt as 'Jutin'. When asked to write down the same message, D also spelt the name incorrectly. On the assumption that the misspelling constituted a confession, the Court of Appeal found that there had been nothing said or done to render the statement inadmissible under s. 76, but that, even if it had been otherwise, s. 76(4)(b) would have rendered the misspelling admissible. Section 76(4)(b) might also be used, for example, in a case of rape, where a tape-recorded confession is ruled inadmissible, but the voice of the accused can be heard speaking with an unusual speech impediment which was also described by the victim, or with a particular local accent. Care must be taken to avoid prejudice to the accused when adducing such evidence; s. 76(4)(b) permits the prosecution to adduce only 'so much of the confession as is necessary to show' the relevant feature, but even this may in some cases be impossible without the jury becoming aware that a confession has been made. It **will have to be considered whether the risk of prejudice can be overcome by a direction as to the purpose for which the evidence has been adduced**, or whether the discretion of the court to exclude prosecution evidence, either under s. 78 of the 1984 Act or at common law, should be exercised. failure of the police to disclose to D that the name on the car had been spelled 'Jutin' was not a matter which rendered it unfair for the prosecution subsequently to rely on D's identical misspelling. ***[S78 -- ]*** The PACE 1984, s. 76(4), applies only to matters coming to light as a result of a confession excluded under s. 76 itself. **Where the confession is excluded in the discretion of the court under s. 78, no statutory rule applies, but the common-law principles suggest that evidence discovered in consequence is admissible**. ***[ADMISSIBILITY OF EVIDENCE OBTAINED UNLAWFULLY, IMPROPERLY OR UNFAIRLY -- ]*** - Where evidence has been obtained illegally, the court may exercise its power, in appropriate circumstances, to stay proceedings. - where proceedings have not been stayed then, subject to the exceptions considered in F2.2 to F2.6, evidence obtained unlawfully, improperly or unfairly is admissible as a matter of law. I have not the least doubt that we must firmly accept the proposition that an irregularity in obtaining evidence does not render the evidence inadmissible'. **Evidence is admissible as a matter of law, therefore, if it has been obtained by any of the following means**: a. Theft b. Unlawful search of persons c. Unlawful search of premises d. The use of agents provocateurs e. Eavesdropping f. Invasion of privacy , (in which evidence of an incriminating conversation was obtained by means of a secret electronic surveillance device). ***[Confessions -- ]*** If it is represented to the court that a confession made by an accused person was or may have been obtained by the means set out in the PACE 1984, s. 76(2), the court shall not allow the confession to be given in evidence against the accused, except to the extent that the prosecution prove to the court beyond reasonable doubt that the confession was not so obtained. ***[Evidence Obtained by Torture or Inhuman or Degrading Treatment -- ]*** Evidence obtained by torturing another human being may not lawfully be admitted against a party to proceedings in a British court, irrespective of where, or by whom, or on whose authority the torture was inflicted. ***[Torture --]*** the infliction of severe pain or suffering on someone by a public official in the performance or purported performance of official duties. it is submitted that in a criminal trial, if the defence can establish a prima facie case that evidence on which the prosecution seek to rely was obtained by torture, the burden should be on the prosecution to prove beyond reasonable doubt that it was not so obtained. It is arguable that evidence should be excluded if obtained as a result of secret detention, but the argument for exclusion is not as strong as in relation to torture, there being no equivalent of the Torture Convention, Article 15, in relation to secret detention. **ECHR --** Incriminating real evidence recovered as a direct result of torture should never be admitted, but evidence secured as an indirect result of statements made and obtained by inhuman treatment may be admitted if it is only accessory in securing a conviction and its admission does not compromise defence rights. ***[S78 -- ]*** Section 78 applies to evidence on which the prosecution propose to rely and therefore applications to exclude evidence under the section should be made before the evidence is adduced. The decision of a judge whether or not to exclude evidence under section 78 of the 1984 Act is made as a result of the exercise by him of a discretion based upon the particular circumstances of the case and upon his assessment of the adverse effect, if any, it would have on the fairness of the proceedings. The circumstances of each case are almost always different, and judges may well take different views in the proper exercise of their discretion even when the circumstances are similar. Strictly speaking, s. 78(1) does not involve an exercise of discretion because, if a court decides that admission of the evidence in question would have such an adverse effect on the fairness of the proceedings that it ought not to admit it, it cannot logically exercise a discretion to admit it. Section 78(1) may be used to attempt to exclude **any** evidence on which the prosecution propose to rely. The mere fact that evidence of D's conduct might have a prejudicial effect is not a reason to exclude it under the PACE 1984, s. 78 Evidence open to exclusion at common law, i.e. (a) any admissible evidence which is likely to have a prejudicial effect out of proportion to its probative value, and (b) admissions, confessions and other evidence obtained from the accused after the commission of the offence by improper or unfair means, and which might operate unfairly against the accused. in any case where the evidence could properly be excluded at common law, it can certainly be excluded under s. 78 where A and B were jointly charged with having conspired to commit an offence. A pleaded guilty and B not guilty. At the trial of B the prosecution sought to admit the conviction of A under the PACE 1984, s. 74. The prejudicial effect of this evidence clearly outweighed its probative value, because A's admission of the offence charged might have led the jury to infer that B must have conspired with A, and therefore the common-law discretion to exclude could have been invoked. Instead, the Court of Appeal held that the evidence should have been excluded under s. 78. the fact that D has entered into an agreement pursuant to what is now the SA 2020, s. 74 (see E2.6), will not in itself call for exclusion of D's evidence under s. 78, even if it is of central importance; the dangers inherent in giving evidence against accomplices are met by giving the jury a proper warning. Section 78(1), **insofar as it may be used to exclude evidence obtained by improper or unfair means, is not confined, as is the common-law power described in Sang \[1980\] AC 402 at p. 437, see F2.45, to 'admissions, confessions and generally with regard to evidence obtained from the accused after the commission of the offence'** Nor, in relation to evidence obtained improperly or unfairly, is s. 78(1) necessarily confined, in the way that the common-law power apparently is, to cases in which those who obtained the evidence acted mala fide. ***[What is the test for exclusion under s78?]*** - To have regard to all the circumstances, including those in which the evidence was obtained. In some cases, of course, the submission to exclude under the subsection will not be based on the circumstances in which the evidence was obtained; see, e.g., the cases in which an application has been made under s. 78(1) to exclude evidence of the conviction of a person otherwise admissible under s. 74. The court may have regard to any unlawful, improper or unfair conduct by means of which the evidence was obtained, including, in particular, conduct in breach of the ECHR or the provisions of the 1984 Act (or the Codes of Practice issued under the Act) relating to such matters as search, seizure, arrest, detention, treatment, questioning and identification. Even where the evidence in question was obtained by someone who is not 'charged with the duty of investigating offences' for the purposes of s. 67(9) of the 1984 Act, the principles underlying Code C may be of assistance in considering the discretion to exclude under s. 78(1). However, breach of the ECHR, the 1984 Act or the PACE codes etc. will not necessarily result in exclusion: every case must be determined on its own particular facts. Equally, the fact that evidence has been obtained by 'oppressive' conduct will not automatically result in exclusion, because oppressive conduct, depending on its degree and actual or possible effect, may or may not affect the fairness of admitting particular evidence. ***[Other provision for exclusion -- ]*** Unlike the PACE 1984, s. 78(1), which is of general application, other statutory provisions empower the court, in the exercise of its discretion, to exclude specific types of otherwise admissible evidence. Thus the CJA 2003, s. 101(3), confers a discretion to exclude otherwise admissible evidence of the bad character of the accused, having regard to the particular factors set out in s. 101(4) (see F13.15) and appears to provide a protection additional to the PACE 1984, s. 78(1). Similarly, the CJA 2003, s. 126, confers a discretion to exclude otherwise admissible hearsay statements, whether adduced by the prosecution or defence. ***[Nature of the discretion at common law -- ]*** Although there is no common-law authority to suggest that a criminal court has any power to admit as a matter of discretion evidence which is inadmissible under an exclusionary rule of law, it is well established that a judge, as part of his or her inherent power and overriding duty in every case to ensure that the accused receives a fair trial, always has a discretion to exclude otherwise admissible prosecution evidence if, in the judge's opinion, its prejudicial effect on the minds of the jury outweighs its true probative value. in all such cases the **judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial, having regard to the purpose to which it is professedly directed, to make it desirable in the interest of justice that it should be admitted**. If, so far as **that purpose is concerned, it can in the circumstances of the case have only trifling weight, the judge will be right to exclude it.** To say this is not to confuse weight with admissibility. The distinction is plain, but cases must occur in which **it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible**. ***[The application of the common law discretion to exclude confession evidence -- ]*** S82 -- Nothing in this Part of this Act shall prejudice any power of a court to exclude evidence (whether by preventing questions from being put or otherwise) at its discretion. Exclusion of confession evidence at common law was recognised in two contexts: a. the **exclusion of unreliable confessions, the prejudicial effect of which could be said to outweigh their true probative value**; and b. the **exclusion of confession evidence, the admission of which might operate unfairly against the accused**. The common-law powers, though preserved by s. 82(3), are unlikely to be resorted to in practice given the wide ambit of s. 78. The **situation in which they are most likely to be used is where a judge becomes aware, after a confession has been admitted in evidence, of circumstances suggesting that it should not have been.** Neither **s. 76 nor s. 78 applies to this situation** (Sat-Bhambra (1988) 88 Cr App R 55, discussed in detail at F18.75), **so the court is thrown back on its common-law powers.** **Exclusion for unfairness --** - Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offence, \[**the trial judge\] has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means'**. **E**vidence '**would operate unfairly against an accused if it had been obtained in an oppressive manner by force or against the wishes of an accused person or by a trick or by conduct of which the Crown ought not to take advantage'**, and said that trial judges enjoyed a discretion to disallow such evidence. The **discretion was recognised to exist, although it was infrequently exercised, with regard to breaches of the Judges' Rules.** *[Common categories of evidence that may be the subject of applications to exclude under section 78 will consist of evidence obtained in consequence of significant and substantial breaches of the PACE Codes of Practice -- ]* General proposition that a significant and substantial breach of a PACE Code may well result in the exclusion of evidence obtained in consequence, **even in the absence of bad faith**. Whether a breach is 'significant and substantial' for these purposes is clearly a question of fact and degree. a. failure to caution and failure to keep a proper interview record b. failure to caution, to remind of the right to legal advice and to make a contemporaneous record of interview c. failure to record in the original language a statement made other than in English and failure to provide an opportunity to the suspect to read a record and check its accuracy d. failure to make contemporaneous record of interview e. it was held that the absence of a caution was bound to be significant in most circumstances. However, an interview by an officer who genuinely does not believe that an offence has been committed does not call for a caution because its purpose is not to investigate any suspected criminal offence f. where guidance was given on the application of s. 78 to 'safety interviews' carried out under the TA 2000, sch. 8, it was said that much will turn on the nature of the warning or caution given, if any. g. identification by confrontation: failure to show that it was impracticable to hold a parade or a group identification h. failure in a video identification procedure to use images of persons bearing a sufficient resemblance to D i. improper street identification that rendered valueless a subsequent video identification procedure j. failure to inform a person not under arrest that the person is not obliged to remain with the officer was held to be not significant or substantial. In appropriate circumstances, breach of the right to legal advice in the PACE 1984, s. 58, and in the ECHR, Article 6(3)(c), may result in the exclusion of evidence k. However, in the case of drink-driving offences the public interest requires that the obtaining of breath specimens should not be delayed to any significant extent in order to enable a suspect to take legal advice l. it is a question of fact and degree in any given case whether the custody officer acted without delay to secure the provision of legal advice and whether the person held in custody was permitted to consult a solicitor as soon as was practicable m. in the case of children, there is no reason to delay the obtaining of specimens in order for an appropriate adult to be present the test for exclusion is not the seriousness of the breach per se, but the extent of any unfairness caused thereby. it was argued that the judge's conclusion that there had been a major breach of the identification code (PACE Code D) should have sufficed to exclude the evidence. Rejecting this argument, the Court of Appeal pointed out that there had been occasions when there had been quite serious breaches but, it being established that this had not caused unjust prejudice to D, the judge had quite properly allowed the evidence in. a confession was admitted, despite a failure to caution, on the basis that the police had acted in good faith and, in the circumstances, there could have been no unfairness under s. 78. evidence obtained in a 'Hansard' interview was admitted, despite a failure to caution, on the basis that the interviewers **had not acted in bad faith and the interviewees knew that criminal proceedings were in prospect and must have known that they were not obliged to answer questions.** ***[What is the procedure to raise unfairness under s78? ]*** Section 78(1) applies not to evidence which the prosecution have adduced, but to evidence on which the prosecution propose to rely. A **submission that evidence should be excluded under s. 78 was made after the evidence had been given, the Court of Appeal doubted whether s. 78 could in any circumstances entitle the judge to withdraw the evidence or to direct the jury to acquit when the judge had not been invited to refuse to allow the evidence to be given**. However, where a judge has excluded evidence on which the prosecution proposes to rely but, at some later stage in the trial, in the judge's opinion the balance of fairness shifts, there is then a discretion to reconsider the ruling and admit the evidence It seems reasonable to suppose that if the court is prepared to entertain a submission that a particular item would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it, argument should take place in the absence of the jury and, in cases in which evidence needs to be called as to the circumstances in which the evidence was obtained (because they are in dispute), there should be a hearing on the voir dire. **D denied that he had made certain damaging admissions in a conversation with police officers and alleged that he had not been cautioned.** On a defence application under s. 78 to exclude this evidence as having been obtained in breach of the Codes of Practice under the PACE 1984, the trial judge refused to hold a trial within a trial on the issue of whether D had been cautioned. It was held that the judge had erred. However, **where a question arises under s. 78(1) as to the admissibility of identification parade evidence, it has been held that, although there may be rare occasions when it will be desirable to hold a trial within a trial, in general the judge should decide on the basis of the depositions, statements and submissions of counsel.** ***[What are the general principles of a voir dire hearing? ]*** The hearing on the voir dire, or trial within a trial, is the procedure whereby the court determines disputed preliminary facts, i.e. facts which must be established as a condition precedent to the admission of certain items of evidence. **Judge is bound by the exclusionary rules of evidence which apply in relation to the admissibility of evidence at the trial proper**. Thus, at common law, it has been held that it is wrong for a judge to determine the admissibility of a confession on the basis of the depositions. In trials on indictment, the various matters which may fall to be determined in a hearing on the voir dire include the following: a. the competence of a witness b. the admissibility of a confession or some other variety of admissible hearsay, such as a statement made by someone who does not give evidence 'through fear' c. the admissibility of a recording d. the admissibility of a statement contained in a document produced by a computer e. the admissibility of a plea of guilty against an accused who subsequently changes plea to not guilty There can be no question of a trial within a trial in proceedings before magistrates, because the function of the voir dire is to allow the tribunal of law to decide a point of law in the absence of the tribunal of fact, and magistrates are judges of both fact and law. - no general rule as to when admissibility should be determined and the decision on it announced. D, convicted as the proprietor of a firm on whose behalf an overweight vehicle had been driven, **contested the admissibility of a certificate of a police officer to the effect that D had admitted responsibility for the vehicle** (see C2.17), and sought leave to have the question resolved as a preliminary issue. It was held that the **justices had not erred in refusing the application and admitting the evidence as providing a prima facie case for D to deal with later, if he saw fit.** ***[Challenging Admissibility under the PACE 1984, s. 78]*** - Where the defence make a submission that the **magistrates** should exercise their discretion to exclude evidence under s. 78**, they are not entitled to have that issue settled as a preliminary issue in a trial within a trial.** - it was held that the duty of a magistrate, on an application under s. 78, is either to deal with the issue when it arises or to leave the decision until the end of the hearing, the objective being to secure a trial that is fair and just to both parties. **in some cases the accused will be given the opportunity to exclude the evidence before giving evidence on the main issues, because if denied that opportunity the accused's right to remain silent on the main issues will be impaired**, but **in most cases it is better for the whole of the prosecution case, including the disputed evidence, to be heard first, because under s. 78 regard should be had to 'all the circumstances' and fairness to the prosecution requires that the whole of its case, in this regard, be before the court** A trial within a trial may be appropriate if the issues are limited, but not if it is likely to be protracted and to raise issues which will need to be re-examined in the trial itself. **Where there is a s. 78 challenge to evidence of statements made by an accused, it is normally desirable in the interests of justice for the court to hear the evidence in question and to have canvassed in questioning any circumstances which it is said would render its admission unfair**. Where the **justices resolve to exclude it, they should then consider, after seeking the views of the parties, whether the substantive hearing should be conducted by a differently constituted bench.** It is impossible to lay down any general rule as to when magistrates should announce their decision on this type of point, and indeed when the point itself should be taken. Every case will be different. **Some sort of preliminary point, for instance with regard to the admissibility of a document or something like that, can plainly, with the assistance of the clerk, be decided straight away.** Other points ... may require a decision at a later stage of the case, possibly after further argument. I**t may be that in some cases the defendant will be entitled to know what the decision of the justices with regard to the admissibility of a confession is at the close of the prosecution case in order to enable him to know what proper course he should take with regard to giving evidence and calling evidence and so on.** it was impossible to lay down any general rule, other than that 'the object should always be to secure a trial which is fair and just to both sides' Delaying the determination of a question of admissibility of a confession until after the conclusion of the prosecution evidence may be unfair to the defence, in that the accused **will not be able to give evidence about alleged irregularities in the obtaining of the confession unless he or she testifies (thus becoming exposed to cross-examination about the general issues).** Where the admissibility of prosecution evidence falls to be considered under the general exclusionary power in s. 78, the court has a discretion to hear evidence on the issue of admissibility but is not obliged to do so in most cases, it is generally better for the magistrates to hear all the prosecution evidence (including the disputed evidence) before considering an application to exclude evidence under s. 78.