Unit 5&6 Evidence & PACE Reading - PDF

**Syllabus Area 2.    Preliminaries to prosecution** 1. The Codes of Practice issued under the Police and Criminal Evidence Act 1984 (PACE) and their importance to criminal investigations  2. The provisions of Code C.10 (cautions and special warnings) and Code C.11 (interviews) 3. The...

**Syllabus Area 2.    Preliminaries to prosecution** 1. The Codes of Practice issued under the Police and Criminal Evidence Act 1984 (PACE) and their importance to criminal investigations  2. The provisions of Code C.10 (cautions and special warnings) and Code C.11 (interviews) 3. The main powers of arrest and the detention and treatment of suspects ** Syllabus Area 10.    Preliminary evidential matters ** 1. \...  2. \... 3. Common law powers to exclude evidence and discretionary power to exclude under section 78 of PACE *(Recap on reading for Unit 1)* ** ** **Syllabus Area 16.     Confessions and unlawfully obtained evidence** 1. the definition of confessions under PACE 2. admissibility and exclusion of confessions 3. determining the admissibility of confessions and the *voir dire* procedure 4. the admissibility of evidence obtained as a result of inadmissible confessions  5. the exclusion of other prosecution evidence at common law and under section 78 of PACE  6. common categories of evidence that may be the subject of applications to exclude under section 78  7. making or challenging applications to exclude evidence under section 78 Preliminaries to prosecution ============================ 1. The Codes of Practice issued under the Police and Criminal Evidence Act 1984 (PACE) and their importance to criminal investigations 2. The provisions of Code C.10 (cautions and special warnings) and Code C.11 (interviews) 3. The main powers of arrest and the detention and treatment of suspects 1. D1.1 Police powers of investigation, including arrest, detention, interrogation, entry and search of premises, personal search and the taking of samples and various procedures for identification are largely governed by the PACE 1984 and/or the associated PACE codes of practice. A failure by a police officer or other person required to have regard to provisions of the codes does not, of itself, render that officer liable to criminal or civil proceedings (PACE 1984, s. 67(10)). However, to the extent that they are relevant, the codes are admissible in evidence in criminal or civil proceedings (PACE 1984, s. 67(11)). 2. [Definition of Interview] D1.81 \'Interview\' is widely defined by Code C, para. 11.1A, in purposive terms. An interview is the \'questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences which, under para. 10.1, must be carried out under caution\'. By para. 10.1, a person whom there are grounds to suspect of an offence \'must be cautioned before any questions about an offence, or further questions if the answers provide the grounds for suspicion, are put to them **if either the suspect\'s answers or their silence**, (i.e. failure or refusal to answer or answer satisfactorily) **may be given in evidence to a court in a prosecution**\'. Para 10.1 , caution is NOT necessary if questions for other purposes eg. a. Solely to establish identify or ownership of a vehicle b. Obtain info re statutory requirement c. In furtherance of proper and effective conduct of a search d. Seek verification of written record of comments made by the person [Where an interview may be conducted] D1.82 Following a decision to arrest, the suspect must normally be interviewed only at a police station or other authorised place of detention (Code C, para. 11.1). Police station requirement is subject to exception where delay would be likely to: a. Lead to interference with or harm to evidence connected with an offence, interfere with/physical harm to other persons, or serious loss/damage to property b. Lead to alerting other person suspected of having committed an offence but not yet arrested c. Hinder recovery of property obtained in consequence of the commission of an offence Interviewing in any of these circumstances must cease once the relevant risk has been averted or the necessary questions have been put to avert the risk (Code C, para. 11.1). [Cautions and special warnings] D1.83 It follows from Code C, para. 10.1 (see D1.81), that a caution must be administered at the commencement of an interview as defined in Code C, para. 11.1A, whether or not it is conducted at a police station. The caution must also be given on arrest (para. 10.4, and see D1.18). The normal caution is set out in Code C, para. 10.5, as follows: Where an interpreter is used, the fact that the caution is not perfectly translated will not render it invalid provided that the essential features are adequately conveyed to the suspect (*Koc* \[2008\] EWCA Crim 77). If it appears that the suspect does not understand the caution, the person giving it should explain it in his or her own words (Code C, Note for Guidance 10D). D1.84 While Code C, para. 10.1, requires a caution to be given to a person \'whom there are **grounds to suspect\' of an offence,** Note for Guidance 10A explains this phrase by stating that there must be \'some reasonable, objective grounds for the suspicion, based on known facts or information\'. If correct, however, it means that insofar as the caution has a protective purpose, it does not apply to the questioning of a person in respect of whom there is some suspicion not amounting to a reasonable suspicion, even though what the person says may subsequently be used in evidence against him or her. Whether there are sufficient grounds for a caution to be administered is an objective question, and does not simply depend on how the police officer regarded the matter (Williams (Michael) \[2012\] EWCA Crim 264). Failure to administer a caution in circumstances where it is required is a significant and substantial breach of Code C, although it will not necessarily result in exclusion of evidence of the interview (compare Armas-Rodriguez \[2005\] EWCA Crim 1981 and Devani \[2007\] EWCA Crim 1926 with Miller \[2007\] EWCA Crim 1891). Whenever a person is interviewed he or she, and solicitor if represented, must be given, before the interview, sufficient information to make it possible to understand the nature of the suspected offence and why the person is suspected of committing it. However, this does not require the disclosure of details which might prejudice the investigation (Code C, para. 11.1A). D1.85 In addition to the caution, where a suspect is interviewed at a police station or other authorised place of detention following arrest and:  (a)     is asked to account for any object, mark or substance, or mark on such objects found on his or her person, in or on his or her clothing or footwear, otherwise in his or her possession, or in the place where the arrest took place; or  (b)     to account for his or her presence at the place where the arrest took place, a special warning must be given in the terms set out in Code C, para. 10.11. Inferences cannot be drawn if the warning is not given (CJPO 1994, ss. 36(4) and 37(3)). [Information about legal advice] D1.86 Prior to the commencement or recommencement of an interview at a police station or other authorised place of detention, the interviewing officer must, unless access to a solicitor has been delayed or one of the exceptions applies, remind the suspect of the entitlement to free legal advice and that the interview can be delayed for legal advice to be obtained. [Significant statement or silence] D1.87 At the beginning of an interview interviewing officer must, after cautioning the suspect, put to the suspect any significant statement or silence which occurred in the presence and hearing of a police officer or other police staff (and which has not been put in the course of a previous interview) (Code C, para. 11.4). A significant statement is one which appears to be capable of being used in evidence, and in particular a direct admission of guilt. [Conduct of the interview ] D1.88 No police officer or other interviewer may try to obtain answers to questions or to elicit a statement by the use of oppression, nor indicate, except in answer to a direct question, what action the police will take if the suspect answers or refuses to answer questions or make a statement. If the suspect asks the officer directly what action will be taken in any of those events, the officer may inform the suspect of the proposed action, which could be, e.g., keeping the person in detention if further action is to be taken. The proposed action must, however, be proper and warranted (Code C, para. 11.5). Apart from this, the PACE 1984 and Code C provide little, if any, guidance on the proper conduct of interviews, although the case law provides some indication of what is acceptable. It has been held to be legitimate for police officers to pursue their interrogation of a suspect with a view to eliciting admissions even where the suspect denies involvement in the offence or declines to answer specific questions (Holgate-Mohammed v Duke \[1984\] AC 437). [When Interviews should cease] D1.89 The interview of a person who has not been charged or informed that he or she may be prosecuted must cease when the officer in charge of the investigation is satisfied that all the questions the officer considers relevant to obtaining accurate and reliable information about the offence have been put to the suspect, the officer has taken account of other available evidence, and the officer reasonably believes there is sufficient evidence to provide a realistic prospect of conviction (Code C, para. 11.6). This, of course, is subject to the limits imposed by the PACE 1984 on the maximum periods of detention without charge (see D1.67), and the provisions regarding breaks in interviews and rest periods in Code C, para. 12. [Recording of Interviews] D1.90 Interviews of suspects, whether or not conducted at a police station, must normally be contemporaneously recorded (Code C, para. 11.7). Further, any comment that might be relevant to the suspected offence made by a suspect outside the context of an interview, including unsolicited comments, must be recorded and, where practicable, the suspect must be given the opportunity to verify the record (para. 11.13). Interviews conducted under caution (see D1.81), whether or not at a police station, must normally be recorded using an authorised recording device (Code E, para. 2.1). For regulations governing the use of an authorised recording device, see Code E, section 3. [Special Categories of Persons] D1.91 A child or young person or a mentally disordered or vulnerable person (see D1.63) must not be interviewed or asked to provide or sign a written statement in the absence of the appropriate adult unless the conditions for conducting an interview away from a police station under Code C, para 11.1, are satisfied (see D1.82). A person whom the custody officer has determined requires an interpreter (Code C, paras. 3.5(c)(ii) and 3.12, and see D1.50) must not be interviewed without an interpreter unless authorised by an officer of the rank of superintendent or above, being satisfied that delaying the interview will lead to the consequences in Code C, para. 11.1(a) to (c), and that the interview would not significantly harm the person\'s physical or mental state (para. 11.18). [Intoxicated persons] D1.92 Code C, para. 11.18, precludes the interviewing of any person who is unable to appreciate the significance of questions and their answers, or to understand what is happening because of the effects of drink, drugs or any illness, ailment or condition, *unless* it is authorised by an officer of the rank of superintendent (such authorisation being subject to the same conditions as for a person who requires an interpreter). 3. [Reasonable suspicion ] D1.4 A number of police powers are premised upon the constable having reasonable grounds for suspicion. For example, stop and search under the PACE 1984, Part I, requires a constable to have \'reasonable grounds for suspecting that he will find stolen or prohibited articles\' etc. and some, but not all, powers of arrest under s. 24 depend on the officer having reasonable grounds for suspicion. It should be contrasted with the expression \'reasonable grounds for believing\', found in the PACE 1984, s. 24(4) (the necessity for arrest), s. 37(2) (detention without charge) and s. 38(1) (bail following charge), which implies a more stringent test. Reasonable suspicion relates to the existence of facts and not to the state of the law. An officer who reasonably but mistakenly proceeds on a particular view of the law, and thus exercises his or her power of arrest, does not have reasonable suspicion (Todd v DPP \[1996\] Crim LR 344). Reasonable suspicion is not defined in the PACE 1984. It is explained in relation to stop and search powers in PACE Code A, paras. 2.2 to 2.6B, and requires both a genuine suspicion on the part of the officer concerned and an objective basis for that suspicion (para. 2.2). In relation to arrest, Code G provides that there \'must be some reasonable, objective grounds for the suspicion, based on known facts and information\' (para. 2.3A). It has been held that reasonable suspicion requires both that the constable carrying out the arrest actually suspects (a subjective test) and that a reasonable person in possession of the same facts as the constable would also suspect (an objective test). In addition, the arrest must be Wednesbury reasonable (Castorina v Chief Constable of Surrey (1988) 138 NLJ 180; Salmon v Chief Constable of the Police Service of Northern Ireland \[2013\] NIQB 10; Parker v Chief Constable of Essex Police \[2018\] EWCA Civ 2788; Smith v Chief Constable of the Police Service for Northern Ireland \[2019\] NIQB 39). [Use of Force] D1.7 The PACE 1984, s. 117, provides that where any provision of the Act confers a power on a constable and does not provide that the power may be exercised only with the consent of a person other than a police officer, the officer may use reasonable force, if necessary, in the exercise of the power. This would include force used in connection with a stop and search under the PACE 1984, Part I, entry and search of premises under s. 17, arrest under s. 24, detention of a person at a police station under the PACE 1984, Part IV, search of a person under s. 54, intimate search of a detained person under s. 55, fingerprinting without consent under s. 61 and the taking of a non-intimate sample without consent under s. 63. For force to be reasonable, pursuant to both the CLA 1967, s. 3, and/or the PACE 1984, s. 117, it must be both \'necessary and proportionate\'. It is for the arresting officer to demonstrate that: (Afriyie v Commissioner of Police for the City of London \[2023\] EWHC 1632 (KB)). In determining what force is reasonable, the court may take into account all the circumstances including the nature and degree of the force used, the gravity of the offence for which arrest is to be made, the harm that would flow from the use of force against the suspect, and the possibility of effecting the arrest or preventing the harm by other means. The fact that the force used results in serious injury does not necessarily make it unreasonable (Roberts v Chief Constable of Kent \[2008\] EWCA Civ 1588. [Use of handcuffs] D1.8 Use of Handcuffs Handcuffs should be used only where they are reasonably necessary to prevent an escape or to prevent a violent breach of the peace by a prisoner (Lockley (1864) 4 F & F 155. Handcuffing is not an automatic consequence of arrest (Afriyie v Commissioner of Police for the City of London \[2023\] EWHC 1632 (KB)). An unjustified resort to the use of handcuffs will constitute a trespass to the person even if the arrest itself is lawful (Taylor (1895) 59 JP 393; Bibby v Chief Constable of Essex (2000) 164 JP 297). D1.14 D1.15 D1.16 D1.17 D1.18 D1.20 D1.21 D1.22 D1.23 D1.33 D1.35 D1.36 D1.40 [Detention and Treatment of Suspects: CUSTODY OFFICER] D1.44 Where a person has been arrested, that person must normally be taken to a police station (subject to the power to release under the PACE 1984, ss. 30(7) and 30A (s. 30(1). The person may be taken to any police station, unless it is anticipated that detention of more than six hours will be necessary, in which case the person should be taken to a police station designated under s. 35 (s. 30(3) to (6)). One or more custody officers must be appointed for each designated police station (s. 36(1)). A person who has been arrested for an offence can only be kept in police detention in accordance with the PACE 1984, Part IV (s. 34(1)). - Such a person may be detained at a police station only on the authority of the custody officer (s. 37(1)) and may not be released except on the custody officer\'s authority (s. 34(2) and (3)). [Custody Records] D1.45 A custody record must be opened as soon as is practicable in respect of each person who is brought to a police station under arrest, or who is arrested at a police station after having attended voluntarily, or who attends a police station in accordance with bail granted under the PACE 1984, s. 30A. If the detained person is transferred to another police station, the custody record or a copy of it must accompany the person, and must show the time of and reason for the transfer (Code C, para. 2.3). It is not clear whether a new custody record should be opened where a person is further detained on surrendering to custody following a release on police bail or whether the original custody record should be continued. However, time in police detention before the release on bail will normally count for the purpose of calculating the maximum periods of detention (see D1.67). [Notification of Arrest: Right to Notification] D1.52 A person who has been arrested (whether or not for an offence) and who is being held in custody at a police station or other premises has a right, at the person\'s request, to have one friend, or relative or other person who is known to him or her or who is likely to take an interest in his or her welfare, told of the arrest and the place of detention. This is to be done as soon as is practicable (PACE 1984, s. 56(1)). The custody officer must inform the suspect of this right (Code C, para. 3.1(i)) and ask whether the suspect wishes to exercise it (para. 3.5(a)(iii)). If that person cannot be contacted, the detainee may choose up to two alternatives. - If they too cannot be contacted, the custody officer or the person in charge of the investigation has discretion to allow further attempts until the information has been conveyed (para. 5.1). If the detainee does not know of anyone to contact for advice, the custody officer should bear in mind local voluntary bodies who may be able to help (Code C, Note for Guidance 5C). [Detention and treatment of suspects Right to consult a solicitor ] D1.55 A person who is arrested (whether or not for an offence) and held in custody at a police station or other premises has a right, at his or her request, to consult a solicitor privately at any time (PACE 1984, s. 58; Code C, para. 6.1). While the statutory right does not apply in respect of a prisoner on remand in custody at a magistrates\' court, there is a common-law right to consult a solicitor as soon as is reasonably practicable and police cannot refuse access to a prisoner in custody simply because the request falls outside customary hours (Chief Constable of South Wales, ex parte Merrick \[1994\] 2 All ER 560). A person must be told of the right to free legal advice: - when brought to a police station under arrest, or when arrested having initially attended voluntarily (Code C, paras. 3.1 and 6.1); - immediately before the beginning or recommencement of any interview at a police station or other authorised place of detention (para. 11.2); - before a review of detention is conducted or before a decision is made whether to extend the period of detention (para. 15.4); - after charge or being informed that the person may be prosecuted, where a police officer wishes to bring to the person\'s attention any statement or the content of any interview, or where the person is re-interviewed (paras. 16.4 and 16.5); - before being asked to provide an intimate sample (Code D, para. 6.3); - before an intimate drug search is conducted under the PACE 1984, s. 55(1)(b) (Code C, annex A, para. 2B), or an x-ray or ultrasound scan is taken under s. 55A(1) (Code C, annex K, para. 3); - before the person is (exceptionally) interviewed after charge (Code C, para. 16.5); - and before an identification parade or group or video identification is conducted (Code D, para. 3.17). [Detention and treatment of suspect: Children and young people & Mentally disordered or Vulnerable persons] D1.63 In the case of young people, anyone who appears to be under the age of 18 years is a \'juvenile\' for the purposes of Part IV of the PACE 1984 (PACE 1984, s. 37(15) The Children Act 2004, s. 11, requires the police to take into account the need to safeguard and promote the welfare of children in discharging their functions, but does not impose additional obligations (R (C) v Metropolitan Police Commissioner \[2011\] EWHC 2317 (Admin) and see D2.53). With regard to mental disorder or vulnerability, if an officer has any reason to suspect that a person of any age may be vulnerable, in the absence of clear evidence to dispel that suspicion, the person must be treated as such for the purposes of the codes of practice (Code C, para. 1.4). It is imperative that a mentally disordered or otherwise mentally vulnerable person detained under the Mental Health Act 1983, s. 136, be assessed as soon as possible (Code C, para. 3.16). The Mental Health Act 1983, ss. 135 and 136, provide that: The detention of adults at a police station as a place of safety is further regulated by the Mental Health Act 1983 (Places of Safety) Regulations 2017 (SI 2017 No. 1036) (issued under the Mental Health Act 1983, s. 136A(2)) These regulations provide that a police station may only be used as a place of safety in respect of an adult where the relevant decision-maker is satisfied that: [Appropriate adult] D1.64 \'Appropriate adult\', in the case of a young suspect, is defined as a parent or guardian or, if the child or young person is in the care of a local authority or voluntary organisation, a person representing that authority or organisation, a social worker of a local authority, or (failing these) some other responsible person who is not a police officer, employed by the police An estranged parent whom an arrested child or young person does not wish to attend and to whom the child or young person specifically objects should not act as an appropriate adult (Code C, Note for Guidance 1B; DPP v Blake \[1989\] 1 WLR 432). Similarly, an illiterate parent with a low IQ who cannot appreciate the gravity of the situation in which his or her child is placed should not act as an appropriate adult (Morse \[1991\] Crim LR 195). D1.65 A solicitor attending a police station on a suspect\'s behalf should not act as an appropriate adult (Code C, Note for Guidance 1F; Lewis \[1996\] Crim LR 260). A person should not be the appropriate adult if the person [Role of the appropriate adult ] D1.66 The role of the appropriate adult is to safeguard the rights, entitlements and welfare of children and vulnerable persons. Among other things, appropriate adults are expected to: Generally, a child or young person or mentally disordered or vulnerable person must not be interviewed by the police or asked to provide a written statement in the absence of an appropriate adult, *unless* delay would be likely to lead to interference with or harm to evidence connected with an offence, interference with or physical harm to other people or serious loss of or damage to property, to alerting other suspects not yet arrested, or to hindering the recovery of property obtained in consequence of commission of the offence. CONSENT In the case of identification and other evidential procedures that require \'appropriate consent\', the PACE 1984, s. 65(1), provides that, in the case of a person who has attained the age of 14 years but is under 18 years, consent is required from the young person and his or her parent or guardian, but that, in the case of a person under 14 years, only the consent of the parent or guardian is required. Note that if the appropriate adult is not a parent or guardian, he or she cannot give consent. [Detention time-limits] D1.67 The normal maximum period of detention without charge is 24 hours from the relevant time (PACE 1984, s. 41(1)). The period of detention without charge may be extended in respect of a person under arrest for an indictable offence; for up to a total of 36 hours from the relevant time by an officer of the rank of superintendent or above (see D1.69); and for up to a total of 96 hours from the relevant time by a magistrates\' court (see D1.72). Where a detention time-limit has expired and the person is released without charge, he or she may not be re-arrested without warrant for the offence for which the person was previously arrested (subject to the power to arrest for failure to answer to police bail under s. 46A) *unless*, since the release, new evidence has come to light. For the purpose of calculating maximum periods of detention, time normally runs continuously from the relevant time. However, where a detainee is removed to hospital for medical treatment, time spent at the hospital or travelling to or from hospital does not count, except for any time spent questioning the person for the purpose of obtaining evidence in respect of an offence (s. 41(6)). [Relevant time] D1.68 Normally, the relevant time is the time an arrested person arrives at the first police station, or 24 hours after arrest, whichever is the earlier (PACE 1984, s. 41(2)(a)). Where a person released on police bail under the PACE 1984, Part IV, is detained when attending at the police station to surrender to custody, or is arrested under s. 46A for failure to surrender to custody, the relevant time is that which applies to the original detention; however, any time during which the person was on bail is not included (s. 47(6)). It should be noted however that if a person is arrested pursuant to s. 46A(1) (failing to attend a police station at an appointed time) or s. 46A(1A) (breaching pre-charge bail conditions), the period of three hours beginning with the time at which the person arrives at the police station following the arrest is not included as part of any period of police detention which falls to be calculated under the PACE 1984 (ss. 41, 47(6) and (6A)). If a person is arrested other than under s. 46A, e.g., because there is new evidence justifying a further arrest (see D1.67), the relevant time will be that relating to the subsequent arrest (s. 47(7)). Preliminary evidential matters ============================== 1. 2. 3. common law powers to exclude evidence and discretionary power to exclude under section 78 of PACE 3.. Examinable material on the court's powers to exclude evidence will consist of general principles of the common law discretion to exclude evidence and of the discretionary power to exclude evidence under section 78 of PACE. The relevant material is addressed in paragraphs F2.7, F2.8-2.10 and F2.36, of Blackstone's Criminal Practice 2024. F2.7 The most important discretionary power to exclude otherwise admissible prosecution evidence is contained in the PACE 1984, s. 78(1). **[Police and Criminal Evidence Act 1984, s. 78]** (1)     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. (2)     Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence. 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. Section 78(1) is generally regarded as conferring a discretionary power. In Jelen (1989) 90 Cr App R 456 Auld J said, at pp. 464--5: In Boxall \[2020\] EWCA Crim 688, relying on Twigg \[2019\] EWCA Crim 1553, it was said, per curiam, *that exercise of the judgment under s. 78(1), although sometimes described as a discretion, is more properly described as an evaluative decision in ensuring that there is a fair trial in accordance with the ECHR, Article 6*. Either way, the Court of Appeal has been loath to interfere with the decisions of trial judges under s. 78. It has been said that the Court of Appeal will intervene only if the judge has not exercised the discretion under s. 78 at all or has done so but in a Wednesbury unreasonable manner (Associated Provincial Picture Houses Ltd v Wednesbury Corporation \[1948\] 1 KB 223) and that where the Court of Appeal does intervene, it will exercise its own discretion. [S78 General Power] F2.8 Section 78(1) may be used to attempt to exclude any evidence on which the prosecution propose to rely: - see, e.g., O\'Loughlin \[1988\] 3 All ER 431 (depositions and documentary records); - Newell \[2012\] EWCA Crim 650, considered at F17.67 (information provided by the defence on a plea and case management hearing (PCMH) form); - Mason \[1988\] 3 All ER 481 (confessions); - Beveridge (1987) 85 Cr App R 255 (identification parades); - Deenik \[1992\] Crim LR 578 (voice identifications); - and McGrath v Field \[1987\] RTR 349 (intoximeter readings). [S78 Scope for exclusion wider than at common law] F2.9 Evidence open to exclusion at common law, i.e. May be excluded either at common law or pursuant to the PACE 1984, s. 78. 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\', but extends to any evidence on which the prosecution propose to rely. [S78 Application to evidence obtained unlawfully, improperly or unfairly] F2.10 The primary importance of s. 78 is not the degree of overlap with the common law, but the fact that it extends the common-law powers by reason of its potential for the exclusion of evidence obtained unlawfully, improperly or unfairly. - Concerning evidence obtained by such means, the common-law powers are restricted to admissions, confessions and other evidence obtained from the accused after the commission of the offence (Sang \[1980\] AC 402: see F2.45). - Section 78, however, is capable of application to any evidence obtained illegally or by improper or unfair means and on which the prosecution seek to rely, whether obtained from the accused, his or her premises or from any other source. [Discretion to exclude at common law Nature of discretion] F2.36 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. Noor Mohamed v The King \[1949\] AC 182. Referring to cases in which the prosecution seek to admit similar-fact evidence, his lordship said (at p. 192):... Confessions and unlawfully or unfairly obtained evidence ======================================================== 1. the definition of confessions under the Police and Criminal Evidence Act 1984 2. admissibility and exclusion of confessions 3. determining the admissibility of confessions and the voir dire procedure 4. the admissibility of evidence obtained as a result of inadmissible confessions 5. the exclusion of other prosecution evidence at common law and under section 78 of the Police and Criminal Evidence Act 1984 6. common categories of evidence that may be the subject of applications to exclude under section 78 7. making or challenging applications to exclude evidence under section 78 1. [MEANING OF CONFESSION] Police and Criminal Evidence Act 1984, s82 [Definition] F18.1 Police and Criminal Evidence Act 1984, s. 82 (1)     In this Part of this Act--- 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); see F18.8). 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. F18.2 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. [Guilty Pleas and Pleas in Mitigation] F18.3 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. 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. 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. [Confessions Otherwise than in Words] F18.4 There is no statutory definition of \'statement\' for the purposes of Part VII of the PACE 1984, but the 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. 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. [S82 -- Partly and Wholly Exculpatory Statements] F18.5 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 (B \[2009\] EWCA Crim 2113). In Beqa \[2022\] EWCA Crim 1661, the test for what is \'adverse\' was said to depend on what is in issue in the case. 2. [Principle of Admissibility under the Police and Criminal Evidence Act 1984, s. 76] F18.8 (1)     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. (2)     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  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. (3)     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. F18.9 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 (Paris (1993) 97 Cr App R 99). [Definition of Oppression -- s76(2)(a)] F18.10 (8)     In this section \'oppression\' includes torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture). [Ambit of Oppression] F18.11 In Fulling \[1987\] QB 426, the Court of Appeal held (without referring to the PACE 1984, s. 76(8)) that 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, in 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. F18.12 In Fulling, \'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\'. F18.13 Oppression almost inevitably involves some impropriety on the part of the interrogator (Fulling, at p. 432). It does not follow that all impropriety necessarily involves oppression, otherwise all wrongful acts, including breaches of the PACE Codes of Practice, could be termed oppressive, which is clearly not so (Parker \[1995\] Crim LR 233. In Emmerson (1991) 92 Cr App R 284, a police officer had given way to impatience during an 8 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. - In Paris (1993) 97 Cr App R 99, 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. F18.14 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. 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. [Relevance of character and attributes of accused] F18.16 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 (Gowan \[1982\] Crim LR 821), and in Dodd (1981) 74 Cr App 50, O\'Connor LJ said (at p. 56) that the trial judge \'was entitled to consider the type of men he was dealing with\', all of whom were experienced criminals. O\'Connor LJ contrasted the case with that of Hudson (1980) 72 Cr App R 163, in which 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. This view appears to have been confirmed by Seelig \[1992\] 4 All ER 429, in which Henry J, in a ruling described by the Court of Appeal as \'entirely right\', 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. [Exclusion for UNRELIABILITY: S76(2)(b)] [Application of statutory test] F18.18 The PACE 1984 requires 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. The purport of this provision was considered in Re Proulx \[2001\] 1 All ER 57, where Mance LJ stated (at \[46\]): ['Anything said or done'] F18.19 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. In Fulling \[1987\] QB 426 the Court of Appeal stated, obiter, that it was \'abundantly clear\' that a confession may be excluded under s. 76(2)(b) where there is no suspicion of any impropriety. [Words or Actions of the accused] F18.20 It has been held that 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 (Goldenberg (1988) 88 Cr App R 285). The wording of the section, and in particular the words \'in consequence\' in s. 76(2)(b), imported a causal link between what was said or done and the subsequent confession. - It followed that the provision was looking to something external to the person making the confession and which was likely to have some effect in inducing a confession. A self-induced incapacity is clearly relevant to the issue of discretionary exclusion under the PACE 1984, s. 78 (see F18.54). [Breach of PACE Codes] F18.24 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 Officer. Such a breach will not lead to automatic exclusion of a confession obtained in consequence (Delaney (1988) 88 Cr App R 338), though it may, on its own or together with other factors, provide evidence that s. 76(2)(b) has not been complied with. Examples: - Doolan \[1988\] Crim LR 747 (failure to caution and to maintain a proper interview record or to show it to D); makes subsequent confession unreliable. - Chung (1991) 92 Cr App R 314 (questioning before allowing access to a solicitor and failure to show note to D or subsequently to his solicitor); - Waters \[1989\] Crim LR 62 (improper questioning after charge resulting in ambiguous and potentially unreliable answer); - DPP v Blake \[1989\] 1 WLR 432 (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); - Morse \[1991\] Crim LR 195 (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) **[Exclusion under s78]** F18.33 (1)     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. 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 (Dures \[1997\] 2 Cr App R 247, applying the general principle stated in Quinn \[1995\] 1 Cr App R 480). The procedure to be adopted where an application is made to exclude prosecution evidence under s. 78 is considered at F2.11 et seq. The Court of Appeal in Charlton \[2016\] EWCA Crim 52 considered (at \[122\]) that the accused \'has the burden of persuading the court that it should exercise its power under s. 78\' and that the burden is \'no higher than the balance of probabilities\'. [S78 and the PACE Codes of Practice] F18.34 Codes of practice issued under the PACE 1984, s. 66, are admissible in evidence in both criminal and civil proceedings, and any provision of such a code appearing to the court or tribunal conducting the proceedings to be relevant to any question arising in the proceedings, must be taken into account in determining that question by virtue of s. 67(11). 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. - 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 (Canale \[1990\] 2 All ER 187). F18.35 Breach of a code of practice is in many cases an important factor in considering whether to exclude evidence. Where confession evidence is concerned, the code most likely to be involved is Code C, dealing with the detention, treatment and questioning of persons by police officers. [Nature and extent of breach ] F18.36 In Walsh (1989) 91 Cr App R 161, D was denied access to legal advice, and it was common ground that there had been a breach of the PACE 1984, s. 58 (see D1.55). The Court of Appeal observed (at p. 163): [Breach of right to legal advice] F18.37 In assessing the effect on the fairness of the proceedings of a breach of the PACE 1984, s. 58, it is relevant that the right of access to legal advice is \'fundamental\' (Samuel \[1988\] QB 615) and that it is regarded as of great importance in the jurisprudence of the ECtHR (Murray v UK (1996) 22 EHRR 29, considered in Aspinall \[1999\] 2 Cr App R 115). Where legal advice is waived the waiver should be voluntary, informed and unequivocal (McGowan v B \[2011\] UKSC 54, as interpreted in Saunders \[2012\] EWCA Crim 1380). This requirement might suggest exclusion in cases where the right to advice, for whatever reason, has not been fully presented to the accused. [Breach of interview procedures] F18.38 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. Other provisions which have been held capable of requiring or contributing to the exclusion of evidence are those relating to cautioning, e.g., in Williams (Michael) \[2012\] EWCA Crim 264, where D was questioned without caution while injured in hospital in circumstances where, viewed objectively, he was already a suspect. Breach of the right to have an appropriate adult present at interview is also likely to trigger exclusion, and in Aspinall \[1999\] 2 Cr App R 115 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. F18.39 The failure of the interrogator to appreciate that questioning a suspect amounts 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. The leading authorities are Absolam (1988) 88 Cr App R 332 (breaches including failure to caution, to record, and to offer legal advice prior to impromptu questioning by custody officer: confession should have been excluded) etc. [Breaches not triggering exclusion] F18.40 For example, in Matthews (1989) 91 Cr App R 43, 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. In Dunford (1990) 91 Cr App R 150, 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. **[Bad faith]** F18.42 It is not the function of the court to use the PACE 1984, s. 78, to discipline the police (Mason \[1988\] 3 All ER 481; Canale \[1990\] 2 All ER 187). However, 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. A similar distinction was drawn in Walsh (1989) 91 Cr App R 160, where it was said (at p. 163) that *\'although bad faith may make substantial or significant that which might not otherwise be so, the contrary does not follow. Breaches which are in themselves significant and substantial are not rendered otherwise by the good faith of the officers concerned*.\' 3. [**Determining the admissibility of confessions**: the Voir Dire] F18.62 The general rules regarding the holding of a voir dire, or trial within a trial, in order to determine disputed issues regarding preliminary facts on which the admissibility of evidence depends, are dealt with in detail at D16.41 et seq. The principles considered here are those which have particular significance with regard to confessions, or are relevant solely to the reception of confession evidence. A confession determined to be admissible by a voir dire must still be properly produced at trial, in the absence of agreement to admit it. Its production at the voir dire does not amount to proof for this purpose (Dirie \[2023\] EWCA Crim 341). [The Voir Dire and the Police and Criminal Evidence Act 1984, s. 76] F18.63 At common law, where the admissibility of a confession statement was to be challenged in a trial on indictment, the following practice was followed:  The PACE 1984, s. 76(2), follows the common law by providing that where the defence represent that a confession on which the prosecution propose to rely was, or may have been, obtained in such a way as to render it inadmissible in evidence, the court shall not allow the confession to be given in evidence except insofar as the prosecution prove to the court beyond reasonable doubt that the confession was not so obtained. F18.64 In Liverpool Juvenile Court, ex parte R \[1988\] QB 1, it was held that 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). The decision represents a significant departure from the common law, which regarded the voir dire as inappropriate in summary trials [The Voir Dire and the Police and Criminal Evidence Act 1984, s78] F18.68 Section 78 is set out at F18.32. The view taken, obiter, by the Court of Appeal in Sat-Bhambra (1988) 88 Cr App R 55 was that the 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 (Vel v Chief Constable of North Wales (1987) 151 JP 510 and see D22.45). F18.83 4. F18.85 F18.86 F18.87 F18.89 5. [Admissibility of evidence obtained unlawfully, improperly, or unfairly: **general rule of admissibility** ] F2.1 Where evidence has been obtained illegally, the court may exercise its power, in appropriate circumstances, to stay proceedings (see Warren v A-G for Jersey \[2011\] UKPC 10). However, 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. Evidence is admissible as a matter of law, therefore, if it has been obtained by any of the following means:  (a)     Theft (Leatham (1861) 8 Cox CC 498 per Crompton J at p. 501).  (b)     Unlawful search of persons (Jones v Owen (1870) 34 JP 759; Kuruma, Son of Kaniu v The Queen \[1955\] AC 197).  (c)     Unlawful search of premises (Jeffrey v Black \[1978\] QB 490).  (d)     The use of agents provocateurs (Sang \[1980\] AC 402).  (e)     Eavesdropping (Stewart \[1970\] 1 All ER 689; Keeton (1970) 54 Cr App R 267; Ali (Maqsud) \[1966\] 1 QB 688; Senat (1968) 52 Cr App R 282).  (f)     Invasion of privacy (Khan (Sultan) \[1997\] AC 558 F2.3 F2.4 F2.5 F2.7 The most important discretionary power to exclude otherwise admissible prosecution evidence is contained in the PACE 1984, s. 78(1). **[Police and Criminal Evidence Act 1984, s. 78]** (1)     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. (2)     Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence. 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. Section 78(1) is generally regarded as conferring a discretionary power. In Jelen (1989) 90 Cr App R 456 Auld J said, at pp. 464--5: In Boxall \[2020\] EWCA Crim 688, relying on Twigg \[2019\] EWCA Crim 1553, it was said, per curiam, *that exercise of the judgment under s. 78(1), although sometimes described as a discretion, is more properly described as an evaluative decision in ensuring that there is a fair trial in accordance with the ECHR, Article 6*. Either way, the Court of Appeal has been loath to interfere with the decisions of trial judges under s. 78. It has been said that the Court of Appeal will intervene only if the judge has not exercised the discretion under s. 78 at all or has done so but in a Wednesbury unreasonable manner (Associated Provincial Picture Houses Ltd v Wednesbury Corporation \[1948\] 1 KB 223) and that where the Court of Appeal does intervene, it will exercise its own discretion. [S78 General Power] F2.8 Section 78(1) may be used to attempt to exclude any evidence on which the prosecution propose to rely: - see, e.g., O\'Loughlin \[1988\] 3 All ER 431 (depositions and documentary records); - Newell \[2012\] EWCA Crim 650, considered at F17.67 (information provided by the defence on a plea and case management hearing (PCMH) form); - Mason \[1988\] 3 All ER 481 (confessions); - Beveridge (1987) 85 Cr App R 255 (identification parades); - Deenik \[1992\] Crim LR 578 (voice identifications); - and McGrath v Field \[1987\] RTR 349 (intoximeter readings). [S78 Scope for exclusion wider than at common law] F2.9 Evidence open to exclusion at common law, i.e. may be excluded either at common law or pursuant to the PACE 1984, s. 78. 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\', but extends to any evidence on which the prosecution propose to rely. [S78 Application to evidence obtained unlawfully, improperly or unfairly] F2.10 The primary importance of s. 78 is not the degree of overlap with the common law, but the fact that it extends the common-law powers by reason of its potential for the exclusion of evidence obtained unlawfully, improperly or unfairly. - Concerning evidence obtained by such means, the common-law powers are restricted to admissions, confessions and other evidence obtained from the accused after the commission of the offence (Sang \[1980\] AC 402: see F2.45). - Section 78, however, is capable of application to any evidence obtained illegally or by improper or unfair means and on which the prosecution seek to rely, whether obtained from the accused, his or her premises or from any other source. **[Test for exclusion]** F2.13 Section 78(1) directs the court, in deciding whether to exercise the statutory discretion, 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 of the 1984 Act. In other cases, however, counsel will be fully justified in basing a submission to exclude on the circumstances in which the evidence was obtained, because it is implicit in the subsection that there can be circumstances in which the evidence was obtained which makes it have such an adverse effect on the fairness of the proceedings that the court ought not to admit it (Matto v Wolverhampton Crown Court \[1987\] RTR 337 per Woolf LJ). - Thus, 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. - 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 (Chalkley \[1998\] QB 848 at p. 874). [Evidence unlawfully, improperly or unfairly obtained & discretion to exclude evidence **other statutory provisions** ] F2.32 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) Similarly, the CJA 2003, s. 126, confers a discretion to exclude otherwise admissible hearsay statements, whether adduced by the prosecution or defence (see in the case of defence evidence, Drinkwater \[2016\] EWCA Crim 16 and, in the case of evidence adduced by the prosecution, expressly preserves the power to exclude such evidence under s. 78(1) [Discretion to exclude at common law nature of discretion ] F2.36 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. Noor Mohamed v The King \[1949\] AC 182. Referring to cases in which the prosecution seek to admit similar-fact evidence, his lordship said (at p. 192):... [Discretionary exclusion under the Police and Criminal Evidence Act 1984, s78 At common law] F18.30 The following section is concerned only with the application of the discretion to exclude confession evidence. Police and Criminal Evidence Act 1984, s. 82 *(3)     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:  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 (see F18.32). - 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. [Exclusion for unfairness] F18.32 In Sang \[1980\] AC 402, Lord Diplock said (at p. 437, emphasis added): \'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\'. - The unfairness discretion was well established at common law with regard to confession evidence. - Houghton (1978) 68 Cr App R 197 6. [Significant and Substantial Breaches] F2.29 In Quinn \[1990\] Crim LR 581, Walsh (1989) 91 Cr App R 161 and Keenan \[1990\] 2 QB 54 were referred to with approval as authority for the 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. In Sparks \[1991\] Crim LR 128, breaches of Code C (failure to caution and failure to keep a proper interview record) were held to be substantial. In Pall (1992) 156 JP 424, it was held that the absence of a caution was bound to be significant in most circumstances. Significant and Substantial Breaches In Quinn \[1990\] Crim LR 581, Walsh (1989) 91 Cr App R 161 and Keenan \[1990\] 2 QB 54 were referred to with approval as authority for the 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. In Sparks \[1991\] Crim LR 128 (in which the proviso to s. 2(1) of the Criminal Appeal Act 1968 was applied), breaches of Code C (failure to caution and failure to keep a proper interview record) were held to be substantial. See also Okafor \[1994\] 3 All ER 741 (failure to caution, to remind of the right to legal advice and to make a contemporaneous record of interview); Coelho \[2008\] EWCA Crim 627 (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) and Joseph \[1993\] Crim LR 206 (failure to make contemporaneous record of interview), but cf. Watson v DPP \[2003\] EWHC 1466 (Admin). In Pall (1992) 156 JP 424, 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 (Code C, para. 10.1, and Shepherd \[2019\] EWCA Crim 1062). See also Leivers \[2023\] EWCA Crim 1469. In Ibrahim \[2008\] EWCA Crim 880, 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. See also, concerning breaches of Code D, Samms \[1991\] Crim LR 197 (identification by confrontation: failure to show that it was impracticable to hold a parade or a group identification), Marcus \[2004\] EWCA Crim 3387 (failure in a video identification procedure to use images of persons bearing a sufficient resemblance to D) and Preddie \[2011\] EWCA Crim 312 (improper street identification that rendered valueless a subsequent video identification procedure). Contrast Rajakuruna \[1991\] Crim LR 458, where a breach of Code C (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 (see generally F18.29 and, in the case of \'safety interviews\', Ibrahim v UK \[2016\] ECHR 750, considered at F18.36). 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 (Campbell v DPP \[2002\] EWHC 1314 (Admin); Kennedy v CPS \[2002\] EWHC 2297 (Admin)); and 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 (Kirkup v DPP \[2003\] EWHC 2354 (Admin); Whitley v DPP \[2003\] EWHC 2512 (Admin)). Similarly, in the case of children, there is no reason to delay the obtaining of specimens in order for an appropriate adult to be present (R (DPP) v B \[2002\] EWHC 2976 (Admin)). F2.30 It is important to stress that the test for exclusion is not the seriousness of the breach per se, but the extent of any unfairness caused thereby. In Ryan \[1992\] Crim LR 187, 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. 7. *[Procedure]* *F2.11* *As to procedure, the issue of unfairness may be raised by counsel for any accused against whom the evidence may be used (by the prosecution).* - *Section 78(1) applies not to evidence which the prosecution have adduced, but to evidence on which the prosecution propose to rely.* *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.* *[Hearing on the Voir Dire: General Principles]* *F1.44* *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.* - *The procedure is set out at D16.41 to D16.52 (trial on indictment) and D22.43 (summary trial).* *Concerning what evidence is admissible for the purpose of proving or disproving disputed preliminary facts, there is some authority to suggest that the judge is bound by the exclusionary rules of evidence which apply in relation to the admissibility of evidence at the trial proper.* *F1.45* *In trials on indictment, the various matters which may fall to be determined in a hearing on the voir dire include the following: * *[Hearings on the Voir Dire: **Application to summary trial** ]* *F1.48* *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.* *It is impossible to lay down any general rule as to when the question of admissibility should be determined by magistrates, or as to when their decision on it should be announced, every case being different (F v Chief Constable of Kent \[1982\] Crim LR 682).* - *These principles, insofar as they relate to confessions, are subject to the statutory constraint of the PACE 1984, s. 76(2), and the decision in Liverpool Juvenile Court, ex parte R \[1988\] QB 1 (see F1.49).* *F1.49* *[Admissibility of confessions]* *If, during the course of a summary trial, the defence, before the close of the prosecution case, challenge the admissibility of a confession under the PACE 1984, s. 76(2) (see F18.8), the **magistrates are bound by the terms of that subsection to hold a trial within a trial** (Liverpool Juvenile Court, ex parte R \[1988\] QB 1.* *When that happens, it is unnecessary to repeat the evidence in the trial proper, because magistrates are judges of both fact and law.* *[Challenging admissibility under the PACE 1984, s78]* *F1.50* *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** (Vel v Chief Constable of North Wales (1987) 151 JP 510).* *In Halawa v Federation against Copyright Theft \[1995\] 1 Cr App R 21, 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.* - *Thus 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.* *D22.43* *D22.45* *Note* *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.*