Exclusion of evidence under section 78 of PACE 1984 and the right to a fair trial under Article 6

Do you consider that the manner in which the criminal courts have exercised their power to exclude prosecution evidence under section 78 of the Police and Criminal Evidence Act 1984 is sufficient to satisfy an individual’s right to a fair trial under Article 6 of the ECHR?

The courts have two mediums through which they can express their power to exclude certain prosecution evidence; discretion as defined in the common law, and statutory discretion as detailed in section 78 of the Police and Criminal Evidence Act 1984 (PACE).1 Academic commentators suggest that it is unclear exactly how judicial discretion operates in practice, however, what is agreed on is that with the introduction of PACE the overall effect is that evidentiary exclusion can be justified on broader terms.2

Previous to the Act coming into force on the 1st January 1986, the exclusion of evidence obtained improperly was rare in application by the courts. Crompton J in R v Leatham [1861] opined that ‘it matters not how you get it, if you steal it even, it would be admissible in evidence’, and in the case of Kuruma v R [1955], Lord Goddard CJ gave the view that the courts would exclude evidence obtained if it operated unfairly against the accused.3 More recently in the case of R v Sang [1980] Lord Diplock reaffirmed his predecessors’ conclusions by offering that apart from the exception of R v Payne [1963]:

(1) A trial judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value. (2) Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offence, he has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means.4

The case of Sang dealt specifically with evidence obtained by an “agent provocateur”, but from this it became the accepted authority relating to courts not being concerned with how evidence was obtained particularly with judges not viewing their function to police the police.5 Whilst this view was accepted, it should not detract from the fact that the judiciary acknowledged their discretion of relevant evidence was important, particularly concerning a judge’s duty to ensure a fair trial.

It appears that the case law is rather generous to the prosecution with regards to judges’ discretion when deciding whether to exclude any evidence obtained dubiously; however, one could argue it is equally restrictive. What is quite clear is that the common law concern is not how evidence is obtained, but its subsequent effect. The introduction of PACE has broadened the requirements for judicial discretion of exclusion.6 The statute clearly places emphasis the court’s power to ‘refuse to allow evidence’ that would have ‘an adverse effect on the fairness of the proceedings’ which is arguably not dissimilar from common law.7 What the statute does add, however, is that the courts must have regard to ‘the circumstances in which the evidence was obtained’.8 It is important to note at this stage that the introduction of PACE has not replaced the common law, there is overlap with further content in the statute as the drafters included section 82(3) which preserves any power of the court to exclude evidence if the prejudicial effect far outweighs the burden of proof on the accused.9 However in R v Khan [1994] Lord Taylor demonstrated a rather restrictive view when he commented that it is ‘only necessary to consider the question of the exercise of discretion under s 78’, thus contending that, in practice, it is the statutory provision that takes precedent over the common law.10 Section 78 of PACE has broadened the restrictions of excluding improperly obtained evidence in two main ways: one, the courts can look at how evidence was obtained, which may cover cases of entrapment of the use of “agent provocateurs”, and; two, discretion is not just applicable to confessions but any form of evidence the prosecution purports to rely on, for example hearsay or rumours of bad character.11 The wording of section 78 is wide and has been regarded as highlighting the power of judiciary in providing a fair trial for the defendant, which existed before the introduction of the statute, as emphasised in R v Khan.12

The requirements for the protection of human rights would seem to support the need for the judiciary to comply with PACE, in particular Article 6 of the European Convention of Human Rights (ECHR) which identifies the individual’s right to a fair trial, are of significance in the application of section 78.13 Article 6(1) gives the provision that for ‘any criminal charge ... everyone is entitled to a fair and public hearing ...’ which will inevitably have a direct effect on a judge’s decision whether or not to allow improperly obtained evidence by the prosecution.14 For example, if there was notable disregard by the domestic courts of the articles set out by the ECHR, questions regarding the purpose and significance of the Convention on human rights could be raised. When interpreting Convention rights, section 2(1) of the Human Rights Act 1998 (HRA) directs the domestic Courts how they should treat decisions of the European Court of Human Rights (ECtHR).15 As Parpworth points out, it would imprudent for domestic courts not to show consideration to the judgements of the Convention’s institutions when concerned with the rights contained therein.16 However, section 2 does not require domestic courts to be bound by the decisions of the Strasbourg Court, only that ‘a court of tribunal determining a question which has arisen in connection with a Convention right must take into account any ... judgment ... of the European Court of Human Rights’.17

In addition to the legislation, the Codes of Practice which are implemented under section 66 of PACE, outline the acceptable and appropriate conduct by the police when obtaining evidence.18 A breach of a code will not necessarily have the effect of causing evidence obtained to be inadmissible; however, the most common trigger to enforce section 78 is when the defence can show there has been a breach of PACE or the Codes of Practice.19 It is here that judicial discretion is acknowledged and subsequently whether the admissibility of evidence upholds the defendant’s right to a fair trial. For example, the failure of the police to caution and record an interview with a suspect is regarded as a substantial breach of Code C as seen by the refusal of evidence in R v Sparks [1991] and R v Hunt [1992].20 However, in R v Williams [1992] Williams agreed in the police interview that he was volunteering information freely and had not been promised anything, following a previous ‘no comment’ interview; his defence invited the judge to rule under section 78 of PACE due to the defendant being persuaded to confess by police.21 The judge accepted the police evidence and concluded there had been no breach of PACE, illustrating clear discretion of evidence that was claimed to have been obtained unfairly.

Other major areas in which section 78 is invoked by the defence are when evidence is obtained by the police by covert surveillance and under-cover operations.22 Arguably the most important case when considering the criminal courts’ discretion to include evidence obtained by surveillance is R v Khan (Sultan).23 The House of Lords (now the Supreme Court) upheld the decision of the Court of Appeal that evidence obtained by a listening device, attached by the police to a private house without knowledge of the owner, was admissible and should not have been excluded under section 78. The crime being investigated was one of severity: in the circumstances, the invasion of privacy, with attendant trespass and damage, was outweighed by the lack of pressure or oppression by the police, the absence of incitement, the fact that the defendant had not been arrested and the existence of a tape recording of the conversations. This approach by The House of Lords was then ratified by the ECtHR in its ruling of Khan v UK [2001] that there had been no violation of the defendant 's right to a fair trial, despite the fact that the evidence was obtained in violation of Article 8 of the ECHR. The domestic courts had assessed the effect of admission of the evidence on the fairness of the trial by reference to section 78, and it being clear that had those courts been of the view that the admission of the evidence would have led to substantive unfairness, they would have had a discretion to exclude it, the proceedings as a whole were not unfair.24

R v Chalkley and Jeffries [1998] saw the prosecution sought to rely on covertly obtained video recordings between the defendants for conspiracy to rob. The police arrested the men on unrelated charges and, in their absence, planted listening devices in their house. The defence argued that the recordings should be excluded under section 78, however, the trial judge admitted the evidence concluding that the interests of justice and wider public interest outweighed discouraging abuse of police power.25 Cases such as R v Ali and R v Bailey and Smith also offer examples of the courts allowing evidence to be admitted that was argued to be in breach of section 78 by the defendant.26

The use of under-cover operations by the police in obtaining evidence as in Williams v DPP [1994] where a party was ‘invited’ to take cigarettes from a van, as the rear door was left open with the cigarettes in view, is another example of the judge ruling that it was in the interest of public protection that the evidence be admitted.27 In R v Christou [1992] the Court of Appeal allowed evidence where the police practiced trickery in setting up a jewellery shop and advocating deals with stolen property, Lord Taylor stated that, ‘the trick was not applied to the appellants; they voluntarily applied themselves to the trick’.28

Conversely, in the case of R v Sutherland [2002] the prosecution for murder could not proceed due to abuse of process by the police.29 The judge heard how police, acting in bad faith, had intercepted legally privileged conversations between lawyers and clients in the police station exercise yard. Even though the conversations were not relied on at trial, this was still an abuse of the process of the police and the case was dismissed.30 This was affirmed by the Court of Appeal in R v Wood and others [2002].31

The courts often fail to give explanations for ruling evidence inadmissible when pursuing fairness in the proceedings; however, what is relevant in the decisions outlined above is the value of evidence obtained compared to the severity of the code breached. When the seriousness of the crime (as in Khan) being investigated was of importance and was viewed by the trial judge to outweigh the poor police procedure, the evidence is more often than not admitted. Whereas if the value of evidence the police discover through improper conduct is of little use (as in Sutherland) judges are not afraid to dismiss the prosecution’s case.

The application of the common law and PACE alongside the ECHR suggest the need to achieve fairness in court proceedings whilst protecting the accused rights. The application of judicial discretion when determining the admissibility of evidence may be be argued to be sufficient in as far as judges not only have the rights of the accused to consider, but the rights of the general public to protect also.

Bibliography

Primary material

Police and Criminal Evidence Act 1984 http://www.legislation.gov.uk/ukpga/1984/60/contents https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/117589/pace-code-c-2012.pdf (Code C)

Article 6 of the European Convention of Human Rights

Human Rights Act 1998 http://www.legislation.gov.uk/ukpga/1998/42/contents Secondary material

Doak, Jonathan & Claire Mcgourlay. Evidence in Context. Routledge.

Hunter, Mary. “Judicial discretion: Section 78 in practice.” Criminal Law Review (1994).

Irvine, Lord, of Lairg. “A British Interpretation of Convention Rights.” British Institute of International and Comparative Law (2011).

Parpworth, Neil. Constitutional & Administrative Law. Oxford University Press.

Stone, Richard. “Exclusion of Evidence under Section 78 of the Police and Criminal Evidence Act: Practice and Principles,” 3 Web JCLI (1995).

Cases

Khan v. UK [2001] 31 EHRR 1016
Kuruma v R [1955] AC 197
R v Ali, The Times, February 19, 1991, CA
R v Bailey and Smith, 97 Cr App R 365 CA
R v Christou [1992] 3 WLR 228
R v Hunt [1992] Crim LR 582
R v Khan [1994] 4 All ER 426
R v Khan (Sultan)[1997] A.C. 558
R v Leatham [1861] 8 Cox CC 498
R v Payne [1963] 1 WLR 637
R v Sang [1980] AC 402
R v Sparks [1991] Crim LR 128
R v Sutherland & Ors (2002) Jan 29, Nottingham Crown Court
R v Williams [1992] Crim LR 198
R v Wood and others [2002] 3 Archbold News 3
Williams v DPP [1994] 98 Cr App Rep 209

Bibliography: Hunter, Mary. “Judicial discretion: Section 78 in practice.” Criminal Law Review (1994). Irvine, Lord, of Lairg Stone, Richard. “Exclusion of Evidence under Section 78 of the Police and Criminal Evidence Act: Practice and Principles,” 3 Web JCLI (1995). Kuruma v R [1955] AC 197 R v Ali, The Times, February 19, 1991, CA R v Sparks [1991] Crim LR 128 R v Sutherland & Ors (2002) Jan 29, Nottingham Crown Court