section 78 of Evidence Act; illustration and explanation

1. Introduction:

Confessions apart English law has in the past been notoriously unwilling to acknowledge the case for excluding evidence which is obtained in a way which involves the police acting improperly or even illegally. The general rule is that evidence is admissible even where it is obtained illegally or unfairly, but may be excluded under the exercise of judicial discretion. The clearest statement of the common law position was delivered by Crompton J in R v. Leatham: ‘It matters not how you get it; if you steal it even, it would be admissible in evidence’. However, unfairly obtained evidence may be excluded in two ways:

 2.  Discretion to exclude at common law:

a)      where probative value is outweighed by prejudicial effect;

b)      confession evidence s 76 (2);

c)      evidence obtained from accused after commission of offence.

Section 82 (3) of the Police and Criminal Evidence Act 1984 (PACE) retains the common law discretion to exclude admissible evidence, although its scope remains unclear, despite a House of Lords ruling in R. v. Sang, which attempted to lay down guidelines. Lord Diplock explained the general rule and the role of the judge to ensure fairness, but that ‘what the judge at the trial is concerned with is not how the evidence sought to be adduced by the prosecution has been obtained, but with how it is used by the prosecution at trial’. However, it is submitted that this common law discretion remains, despite the provisions of the Criminal Justice Act 2003.

  Discretion to exclude under s78 (1) PACE 1984.

3. Judges free hand in their operation of s 78 (1):

The Court of Appeal has given trial judges a very free hand in their operation of s 78 (1) and subjects their decisions to a minimum of review. In R v. Samuel, the Court of Appeal said that it was undesirable to attempt any guidance as to the way in which a judge’s discretion under s78 should be exercised because circumstances varied infinitely. More recently, in R v. Sanghera, Lord Wolf said that it was important to consider each particular case on its facts and to make no broad generalisations about the application of s 78.

 4. Breach of the Codes:

 However, a breach of one of the Codes may help to get evidence excluded under s 78 (1). The importance of the Codes was emphasised by the Court of Appeal in R v. Elson: they are there to protect the individual against the might of the State. The individual, the court added, is at a great disadvantage when arrested by the police, and this is so whether or not the police behave with the utmost propriety. But Code breach will not lead to automatic exclusion. This was made clear in R v. Keenan where there had been breaches of provisions of Code C in relation to recording and authenticating interviews. An argument for exclusion based on Code breach may have to consider whether the provision relied on did in fact apply. The position of the person who has not been arrested, but who is assisting the police with their inquiries, is problematic.

 5. Good faith/bad faith test:

Some judges appear to operate a good faith/bad faith test, using s 78 (1) to exclude evidence obtained illegally and in bad faith. This approach is illustrated by the cases of Matto v. Crown Court at Wolverhampton and Fox v. Chief Constable of Gwent. Both cases involved the unlawful administration of a breath test to drivers suspected of driving with excess alcohol. In Matto, the officers knew they were acting unlawfully, and the Court of Appeal held that the evidence relating to the rest should have been excluded under s 78(1). Conversely, in Fox, officers believed, erroneously, that they were acting within the law. The Court of Appeal held that the evidence had been properly admitted.

 6. Evidence obtained by a trick:

In addition to these general points about the operation of s78 (1), one particular topic requires consideration: the application of the sub-section where evidence has been obtained by a trick. In R v. Bailey, two suspects subsequent incriminating conversation was recorded and later held admissible in evidence. The judge’s decision was upheld by the Court of Appeal, which observed, that such methods were to be used only in grave cases, and where there was no suggestion of oppression or unreliability.

 7. Telephone tapping or bugging:

The use of intrusive surveillance devices, such as telephone tapping or bugging, has sometimes given rise to submissions based on s 78 (1). The case of R v. Khan, which was considered by the Court of Appeal, the House of Lords and the European Court of Human Rights is regarded by many as disappointing in its failure to expand the use of s 78 (1) to strengthen human rights. Evidence was obtained by police officers using an unlawful surveillance technique, in contravention of Article 8 ECHR-the right to privacy. It was conceded by the prosecution that, in the absence of any lawful authorisation, this form of secret surveillance amounted to a civil trespass. Nevertheless, all three courts found that the evidence obtained as a result of this unlawful operation was properly admitted at Khan’s trial.

 8. Evidence was excluded:

It remains the case that entrapment is not a defence to a criminal charge, but English criminal law developed in important respects during the period after Sang. In Bennett v. Horseferry Road Magistrates’ Court, the House of Lords held that courts have jurisdiction to stay proceedings for abuse of process, and to order the defendant’s release, where there has been a serious abuse of power by the executive  from which the prosecution wants to take an advantage. In R v. Latif and Shahzad, the House of Lords held that the principle established in Bennett was applicable where there had been entrapment. For example, in R v. Mason, the police trick was too much for the Court of Appeal. In that case, a police officer had lied to a suspect and to his solicitor about the existence of incriminating evidence. It was held that the suspect’s subsequent confession should have been excluded.

 9. Developments in HRA 1998:

These developments were reinforced by the Human Rights Act 1998. it is clear that evidence obtained by entrapment is capable of depriving a defendant of his right to a fair trial under Art 6 of the European Convention. In Teixeira de Castro v. Portugal, the ECHR had to consider the application of a person who had been convicted of drug dealing. The court held that there had been a violation of the applicant’s right to a fair trial under Art 6(1). The public interest could not justify the use of evidence obtained as a result of police incitement. The leading case on entrapment is now the decision of the House of Lords in R v. Looseley. In this case the appellant had been convicted of supplying a class A drug on the basis of evidence which, it was argued, should have been excluded because it had been obtained by entrapment.

 10. Entrapment justifications:

Whether the undercover action was supervised is an important consideration. ‘To allow policemen or controlled informers to undertake entrapment activities unsupervised carries great danger, not merely that they will try to improve their performances in court, but of oppression, extortion and corruption.  The justification of entrapment will depend partly on the nature of the offence being investigated. The fact that the offence is a serious one is not by itself sufficient, but where it is difficult to obtain evidence because of the nature of the offence, entrapment methods are likely to be justified. Examples are consensual offences, such as dealing in drugs; offences with no immediate victim, such as bribery; and offences which victims are reluctant to report.

 11. Entrapment discouraged:

Entrapment occurs when an agent of the State, usually a law enforcement officer or an informer under his control, causes someone to commit an offence in order that he should be prosecuted. Entrapment is to be discouraged for two principal reasons. First, the courts have a duty to stand between the state and its citizens’ in order to prevent oppression of the latter. Secondly, the courts have a duty not to allow their own proceedings to be abused by executive agents of the State, because to permit such abuse would bring the administration of justice into disrepute, or would constitute an affront to the public conscience. However, in competition with the need to avoid this kind of abuse of process is the need to convict and punish those who have committed crimes. The two needs have to be balanced, and this means that in deciding whether there has been entrapment it will be necessary to take various factors into account in each case. The weight given to each factor will depend on the particular facts under consideration.

 12. Fairness of the Proceedings:

In some cases the suggestion has been made that the ‘fairness of the proceedings’ refers only to that part of the criminal proceedings taking place in court. But in R v. Looseley, Lord Nicholls, while allowing that the expression was ‘directed primarily at matters going to fairness in the actual conduct of the trial’, such as the reliability of the evidence, said that ‘rightly, the courts have been unwilling to limit the scope of this wide and comprehensive expression strictly to procedural fairness’. In the same case, Lord Scott acknowledged that ‘the fairness of a trial may be compromised if the prosecution is allowed to rely on evidence obtained by unfair means’.

 13. Judge considers fairness:

It is fairness of the proceedings that the judge has to consider. Fairness to the defendant is part of this, but the section is not directed solely towards fairness to the defendant. Fairness of the proceedings requires the judge to take into account fairness to the prosecution as well as to the defence. In R v. O’Loughlin, Kenneth Jones J said in relation to s78(1): ‘I therefore have to balance matters having regard, on the one hand, to the interests of the defendant; on the other hand, to the interests of the public as represented by the prosecution. This conveys something of the right idea, but is misleading in that it ranges public interest solely on the side of the prosecution. It is obvious today, even if in 1987 it was not, that the public has a significant interest in the avoidance of wrongful convictions.

 14. SECTION 78(1) PACE

Section 78(1) provides:

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.

 15. Interpretation:

There are several points to be made about the interpretation of this provision:

a)      ‘In any proceedings’: proceedings means criminal proceedings, whether in the Crown Court or in magistrates courts.

b)      ‘The court may refuse to allow evidence….to be given’: the idea of discretion appears at first sight to be expressed in two ways. Section 78(1) provides that, in the circumstances subsequently set out, ‘the court may refuse to allow evidence on which the prosecution proposes to rely to be given….’( emphasis added). Those circumstances are where ‘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’ (emphasis added). It seems curious that, if the court decides that these circumstances exist, there should remain any room for the exercise of further discretion. On this view, in the opening words of the sub-section, may means shall. This approach has now been adopted by the Court of Appeal.

c)      ‘Evidence on which the prosecution proposes to rely’: the evidence must not have been admitted already. In R v. Sat-Bhambra, it was only after evidence of a confession had been given, and further evidence had been heard, that application was made for the confession to be excluded. The Court of Appeal held that at that stage it was too late for either s76 or s78 to apply; the wording of both sections shows that the court’s power exists only where the evidence in question has not yet been given. Section 76 contemplates a situation where ‘the prosecution proposes to give in evidence a confession by an accused person’, and s 78 contemplates a situation where evidence on which the prosecution ‘proposes the rely’ has yet to be given.

d)      ‘Such an adverse effect on the fairness of the proceedings that the court ought not to admit it’: it is not enough that the admission of the evidence will have some adverse effect; the adverse effect must be so great that the court ought not to admit the evidence. So you can have an adverse effect on the fairness of the proceedings that is not substantial enough to lead to exclusion.

 Extra option:

It is now clear that a judge’s exercise of discretion under this provision can be faulted only on the basis of ‘Wednesbury unreasonableness’. This is a concept drawn from administrative law and is based on the decision in Associated Provincial Picture Houses v. Wednesbury Corp. This case decided that where an authority had a discretion, the courts, in the absence of error in law or fact, could interfere with its exercise only if the decision made in exercise of the discretion was so unreasonable that no reasonable authority could ever have made it. Under this principle, the court does not decide what the reasonable authority would do, but only what no reasonable authority could do.

 Different considerations apply where the judge fails to exercise his discretion at all: for example, where he takes the view that there has been no breach of the Code when in fact there has. The Court of Appeal can then exercise the discretion in his place: R v. Samuel.