I recently attended an excellent seminar given by Judge Malcolm Simmons on the issue of exclusion of unfair evidence.
Malcolm Simmons stated that all relevant evidence is potentially admissible, subject to common law and statutory rules on exclusion. Relevant evidence is evidence of facts in issue and evidence of sufficient relevance to prove or disprove a fact in issue.
However, even where evidence is admissible, it may be excluded in certain circumstances under the court’s common law powers and more frequently under section 78 of the Police and Criminal Evidence Act 1984. Under Section 78 the Court will have regard to all the circumstances, including circumstances where the evidence was obtained illegally, improperly or unfairly, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. This only applies to prosecution evidence.
Judge Simmons explained that an application to exclude evidence may be based on a submission that the evidence has been obtained in circumstances where there has been a significant and substantial breach of the PACE codes of practice. Even where there are such breaches, exclusion will only be ordered where the breach affects the fairness of the proceedings. The discretion to exclude must be based on the particular circumstances of the case and the judge’s assessment of the adverse effect on the fairness of the proceedings.
Any application to exclude evidence under s 78 will be considered by the judge, in the absence of the jury.
I have previously attended seminars run by Malcolm Simmons. He has excellent knowledge of the criminal law and is a truly inspirational speaker.