2014 ZA Q2 “Even if evidence is unlawfully obtained, the only thing that matter is
whether the evidence is reliable. PACE S78 should be interpreted in this
light.” Discuss.
2014 ZB -
2015 ZA Q1 “Citizens will not have faith in the courts if judges too easily overlook
wrongdoing by the authorities; but nor will citizens be comfortable if they see
serious criminals going free because of relatively minor wrongdoing by the
authorities.”
To what extent does the case-law on the exclusion of illegally obtained
evidence under S76 and S78 PACE 1984 reflect the tension described
above? Do you think the courts are striking the right balance?
2015 ZB Q1 -same-
2015 Oct Q4 “The law on the exclusion of improperly obtained evidence is in need of
clarification and reform.” Discuss.
2016 ZA Q4 “Insufficient use is made by the courts of S78 PACE 1984 and this
undermines the value of an important safeguard to both the legitimacy of the
criminal justice system and the safety of convictions.” Discuss
2016 ZB -
2016 Oct Q1 “S78 PACE 1984 has been applied in an erratic and unprincipled manner by
the courts. This has serious consequences not only for individual defendants
but the legitimacy of the criminal justice system as a whole.” Discuss.
2017 ZA -
2017 ZB Q1 “The risk of miscarriages of justice could be greatly reduced if the court were
to make greater use of S78 PACE 1984 to exclude evidence adduced by the
prosecution.”
Discuss in relation illegally obtained evidence.
2017 Oct Q1 “S78 PACE 1984 has been applied in an erratic and unprincipled manner by
the courts. This has serious consequences not only for individual defendants
but the legitimacy of the criminal justice system as a whole.”
Discuss.
2018 ZA Q4 “Case law suggests that, unless the reliability of evidence is tainted by
illegality or unfairness, evidence is unlikely to be excluded under PACE 1984
S78 merely on account of the manner or means by which it was obtained.”
Discuss.
2018 ZB -
2018 Oct -
2019 ZA Q2 “The threshold of impropriety for deciding whether there has been an abuse of
process, or whether evidence should be excluded, is ambiguous and difficult
to satisfy; it endangers the legitimacy of the criminal justice system.”
Discuss in relation to entrapment and the exclusion of illegally obtained evidence
(other than confessions).
2019 ZB -
2019 Oct -
2020 ZA Q4 What justifications are there for excluding evidence in a criminal trial even if it
is relevant, and how clear is the rationale in the application of any relevant
exclusionary rules?
2020 ZB -
2020 Oct -
Key Q:
-Endangers legitimacy of the CJS & safety of conviction
-need clarification and reform
-manner or means/erratic and unprincipled manner
, -reliability
Common Law
Tradition, English judges have not been at ease in such a situation. Evidently, Lord
Crompton’s in Leatham states that “it matters not how you get it; if you steal it even, it
would be admissible in evidence.” In same view, Lord Goddard in Kuruma states court
was not to be concerned with how evidence was obtained so long as it was relevant.
Hence, it is suggests ignoring reliable evidence poses a more acute threat to the justice
system. But in 1980, the case of Sang seen as a shift in court approach in giving important
to manner in which the evidence obtained. In Sang, court weighed prejudicial effect
against probative value and assert it is not a discretion for judge to inadmissible illegally
obtained evidence, judge in exercises their powers in admitting evidence would make the
trial unfair. This means judges can exclude evidence if judge “is of the opinion that its
prejudicial effect on the jury was likely to outweigh its probative value” (Lord Diplock).
Nevertheless, according to P.G Polyviou, Sang provide unclear guidance on the scope of
discretion during common law.
S78
PACE is to be regarded as codifying act which to be looked at on its own wording. There
are two interpretation of s.78(1) discuss by C.J.W.Allen; first court is bound to consider “all
the circumstance, including the circumstance in which the evidence was obtained”, in
relation to “the fairness of the proceedings” and second the word “may” is apparently even
wider thus wholly without any limitation. On either view, s.78(1) provided wide discretion
with very little guidance as to its exercise due to the vagueness and generality in casting
the term. (V.Bevan & K.Lidstone).
It is important to note s.78 applies to all evidence, whereas s.76 restricted to confession
evidence. However, unlike s.76, there is no direction in s.78 as to burden and standard
proof. On strict reading of s.78(1) it is suggested that burden of proof lies on defence (in
contrast to express instructions of s.76(2)). If so, burden of proof on defendant is to be
discharged to balance of probabilities. Thus, in practice s.78(1) would not be the first
choice of defendant for exclusion of confession (Denis Clark).
Nonetheless, s.78 was drafted in broad terms to allow its application in a variety of
situations that could not be anticipated. In other word, if defendant cannot meet
requirement under s.76(2), he still can rely s.78 to exclude evidence provided its adversely
affect the fairness of proceedings. Simply put, court can apply s.78(1) with or without
presence of some element of impropriety in obtaining evidence (Samuel). It is clear that
s.78(1) is not merely re-state position at common law (Fulling), and its operation overlaps
s.76 and s.82(3) of some common law (Samuel).
Reliable & Improperly obtained
Hence, s.78 rest on idea that admission of certain evidence is capable of adversely
affecting the fairness of proceedings. When considering issue regards fairness, court must
strike a balance between what is fair to prosecution and defence. It is useful to conceive
that there are two major ways in which fairness of proceeding may effect; when evidence
is unreliable and when evidence which has been improperly obtained.
Admission of unreliable evidence before jury likely to substantially decreased the chance
of achieving a correct decision. The discretion of judge to exclude on unreliable evidence
basis was recognised at common law prior to PACE. This common law discretion would
appear to have been preserved by s.82(3), though wider discretion provided by s.78(1)
may not have made it obsolete.
whether the evidence is reliable. PACE S78 should be interpreted in this
light.” Discuss.
2014 ZB -
2015 ZA Q1 “Citizens will not have faith in the courts if judges too easily overlook
wrongdoing by the authorities; but nor will citizens be comfortable if they see
serious criminals going free because of relatively minor wrongdoing by the
authorities.”
To what extent does the case-law on the exclusion of illegally obtained
evidence under S76 and S78 PACE 1984 reflect the tension described
above? Do you think the courts are striking the right balance?
2015 ZB Q1 -same-
2015 Oct Q4 “The law on the exclusion of improperly obtained evidence is in need of
clarification and reform.” Discuss.
2016 ZA Q4 “Insufficient use is made by the courts of S78 PACE 1984 and this
undermines the value of an important safeguard to both the legitimacy of the
criminal justice system and the safety of convictions.” Discuss
2016 ZB -
2016 Oct Q1 “S78 PACE 1984 has been applied in an erratic and unprincipled manner by
the courts. This has serious consequences not only for individual defendants
but the legitimacy of the criminal justice system as a whole.” Discuss.
2017 ZA -
2017 ZB Q1 “The risk of miscarriages of justice could be greatly reduced if the court were
to make greater use of S78 PACE 1984 to exclude evidence adduced by the
prosecution.”
Discuss in relation illegally obtained evidence.
2017 Oct Q1 “S78 PACE 1984 has been applied in an erratic and unprincipled manner by
the courts. This has serious consequences not only for individual defendants
but the legitimacy of the criminal justice system as a whole.”
Discuss.
2018 ZA Q4 “Case law suggests that, unless the reliability of evidence is tainted by
illegality or unfairness, evidence is unlikely to be excluded under PACE 1984
S78 merely on account of the manner or means by which it was obtained.”
Discuss.
2018 ZB -
2018 Oct -
2019 ZA Q2 “The threshold of impropriety for deciding whether there has been an abuse of
process, or whether evidence should be excluded, is ambiguous and difficult
to satisfy; it endangers the legitimacy of the criminal justice system.”
Discuss in relation to entrapment and the exclusion of illegally obtained evidence
(other than confessions).
2019 ZB -
2019 Oct -
2020 ZA Q4 What justifications are there for excluding evidence in a criminal trial even if it
is relevant, and how clear is the rationale in the application of any relevant
exclusionary rules?
2020 ZB -
2020 Oct -
Key Q:
-Endangers legitimacy of the CJS & safety of conviction
-need clarification and reform
-manner or means/erratic and unprincipled manner
, -reliability
Common Law
Tradition, English judges have not been at ease in such a situation. Evidently, Lord
Crompton’s in Leatham states that “it matters not how you get it; if you steal it even, it
would be admissible in evidence.” In same view, Lord Goddard in Kuruma states court
was not to be concerned with how evidence was obtained so long as it was relevant.
Hence, it is suggests ignoring reliable evidence poses a more acute threat to the justice
system. But in 1980, the case of Sang seen as a shift in court approach in giving important
to manner in which the evidence obtained. In Sang, court weighed prejudicial effect
against probative value and assert it is not a discretion for judge to inadmissible illegally
obtained evidence, judge in exercises their powers in admitting evidence would make the
trial unfair. This means judges can exclude evidence if judge “is of the opinion that its
prejudicial effect on the jury was likely to outweigh its probative value” (Lord Diplock).
Nevertheless, according to P.G Polyviou, Sang provide unclear guidance on the scope of
discretion during common law.
S78
PACE is to be regarded as codifying act which to be looked at on its own wording. There
are two interpretation of s.78(1) discuss by C.J.W.Allen; first court is bound to consider “all
the circumstance, including the circumstance in which the evidence was obtained”, in
relation to “the fairness of the proceedings” and second the word “may” is apparently even
wider thus wholly without any limitation. On either view, s.78(1) provided wide discretion
with very little guidance as to its exercise due to the vagueness and generality in casting
the term. (V.Bevan & K.Lidstone).
It is important to note s.78 applies to all evidence, whereas s.76 restricted to confession
evidence. However, unlike s.76, there is no direction in s.78 as to burden and standard
proof. On strict reading of s.78(1) it is suggested that burden of proof lies on defence (in
contrast to express instructions of s.76(2)). If so, burden of proof on defendant is to be
discharged to balance of probabilities. Thus, in practice s.78(1) would not be the first
choice of defendant for exclusion of confession (Denis Clark).
Nonetheless, s.78 was drafted in broad terms to allow its application in a variety of
situations that could not be anticipated. In other word, if defendant cannot meet
requirement under s.76(2), he still can rely s.78 to exclude evidence provided its adversely
affect the fairness of proceedings. Simply put, court can apply s.78(1) with or without
presence of some element of impropriety in obtaining evidence (Samuel). It is clear that
s.78(1) is not merely re-state position at common law (Fulling), and its operation overlaps
s.76 and s.82(3) of some common law (Samuel).
Reliable & Improperly obtained
Hence, s.78 rest on idea that admission of certain evidence is capable of adversely
affecting the fairness of proceedings. When considering issue regards fairness, court must
strike a balance between what is fair to prosecution and defence. It is useful to conceive
that there are two major ways in which fairness of proceeding may effect; when evidence
is unreliable and when evidence which has been improperly obtained.
Admission of unreliable evidence before jury likely to substantially decreased the chance
of achieving a correct decision. The discretion of judge to exclude on unreliable evidence
basis was recognised at common law prior to PACE. This common law discretion would
appear to have been preserved by s.82(3), though wider discretion provided by s.78(1)
may not have made it obsolete.
