The view that the rules of admissibility patronise the decision makers
has led to the suggestion that juries should be presented with all
relevant evidence which the prosecution or the defence wish to
introduce. Discuss.
The view that the rules of admissibility patronise the decision makers has led to the
suggestion that juries should be presented with all relevant evidence which the
prosecution or the defence wish to introduce. Effectively, this means any problems or
perceived weakness with the evidence should be explained to the jury, rather than
the evidence being withdrawn from their consideration. In order to examine this
proposition, this essay will consider whether this approach would be a fairer way to
protect and balance the interests of defendants, victims and witnesses during a
Crown Court trial by examining the pros and cons of the rules on the admissibility of
evidence.
Arguably, one of the most controversial areas regarding the rules on the admissibility
of evidence concerns the court’s application of section 78(1) of the Police and
Criminal Evidence Act 19841 which deals with prosecution evidence obtained by
illegal or unfair means. This area is controversial because opinions for and against
the exclusion of relevant evidence have always been strongly divided and there are
strong criticisms as to the ways in which the courts come to a decision on whether
relevant evidence should be excluded or not. As Sanders and Young points out,
“what a judge may regard as ‘unfair’ is something of a lottery”. 2 On the one hand,
there is the view that “evidence which is relevant and otherwise admissible should
not be excluded because of the means by which it was obtained, whether illegal,
improper, or unfair; to exclude it would, in some cases, result in injustice including
the acquittal of the guilty”,3 which seems to suggest that there is a need to seek for
the protection of the victims’ interest. However, on the other hand, there is the
contrasting view that “illegally or improperly obtained evidence should always be
1
Police and Criminal Evidence Act 1984, s78(1) states that ‘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
Sanders, A. and Young, R. Criminal Justice 3rd edition (Oxford: Oxford University Press, 2007) p. 249.
3
Keane, A. The Modern Law of Evidence 7th edition (Oxford: Oxford University Press, 2008) p. 53.
1
has led to the suggestion that juries should be presented with all
relevant evidence which the prosecution or the defence wish to
introduce. Discuss.
The view that the rules of admissibility patronise the decision makers has led to the
suggestion that juries should be presented with all relevant evidence which the
prosecution or the defence wish to introduce. Effectively, this means any problems or
perceived weakness with the evidence should be explained to the jury, rather than
the evidence being withdrawn from their consideration. In order to examine this
proposition, this essay will consider whether this approach would be a fairer way to
protect and balance the interests of defendants, victims and witnesses during a
Crown Court trial by examining the pros and cons of the rules on the admissibility of
evidence.
Arguably, one of the most controversial areas regarding the rules on the admissibility
of evidence concerns the court’s application of section 78(1) of the Police and
Criminal Evidence Act 19841 which deals with prosecution evidence obtained by
illegal or unfair means. This area is controversial because opinions for and against
the exclusion of relevant evidence have always been strongly divided and there are
strong criticisms as to the ways in which the courts come to a decision on whether
relevant evidence should be excluded or not. As Sanders and Young points out,
“what a judge may regard as ‘unfair’ is something of a lottery”. 2 On the one hand,
there is the view that “evidence which is relevant and otherwise admissible should
not be excluded because of the means by which it was obtained, whether illegal,
improper, or unfair; to exclude it would, in some cases, result in injustice including
the acquittal of the guilty”,3 which seems to suggest that there is a need to seek for
the protection of the victims’ interest. However, on the other hand, there is the
contrasting view that “illegally or improperly obtained evidence should always be
1
Police and Criminal Evidence Act 1984, s78(1) states that ‘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
Sanders, A. and Young, R. Criminal Justice 3rd edition (Oxford: Oxford University Press, 2007) p. 249.
3
Keane, A. The Modern Law of Evidence 7th edition (Oxford: Oxford University Press, 2008) p. 53.
1
