Section 78 PACE: Exclusion of Illegally Obtained Evidence

Illegally Obtained Evidence and Justice

Illegally Obtained Evidence (IOE) - Jeremy Bentham once stated that evidence is the basis of justice. To exclude evidence is to exclude justice. However, is this truth maintained in situations where evidence has been obtained illegally?

Common Law Position before PACE

Before the codification of the Police and Criminal Evidence Act (PACE), judges generally adhered to the common law (CL) position. Crompton J in R v Leatham stated that even if the evidence was stolen, the evidence is still admissible. This shows that the common law completely neglected the method by which evidence was obtained and focused only on the end result. Therefore, as long as the evidence was relevant at the time, it did not matter how it had been obtained.

Polyviou commented that under the CL position there was no clear understanding of the scope of judicial discretion in relation to illegally obtained evidence.

Codification: Section 78 PACE

This position was later changed by the codification of section 78(1) PACE, which 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.”

Under s.78, confession evidence that is obtained by oppression or is rendered unreliable by things said or done is not valid. Furthermore, if admitting the evidence would have an adverse effect on the fairness of the proceedings, the court may exclude that evidence. It should be noted that s.78 applies to proceedings, not limited only to trials.

Arguments and Scholarly Views

Despite the codification, some commentators and judges argue that s.78 does not differ significantly from the common law. For example, Watkins L.J. in R v Mason expressed the view that s.78 did no more than restate the CL position. Sharpe also criticized the section, observing that its wording is unstructured and leaves a lacuna in the law.

By contrast, authors such as Ormerod & Birch have argued that the discretion under s.78 is advantageous because it will promote reliability of the evidence. Professor Richard Stone has suggested that a guideline is needed to control the broad discretion provided by s.78.

Key Points from Cases and Commentary

• R v Leatham: Common law admissibility despite how evidence was obtained.
• R v Mason / Watkins L.J.: s.78 may merely restate CL principles.
• Sharpe: Criticises the unstructured wording of s.78 and identifies gaps.
• Ormerod & Birch: Support the discretion as promoting reliability.
• Richard Stone: Calls for guidelines to control judicial discretion under s.78.

Practical Effect

Section 78 enables courts to scrutinize not only the relevance of evidence but also the methods used to obtain it. While this represents an improvement over the previous CL approach, the provision's broad and unguided discretion has been criticised for creating uncertainty in decision-making.

Concluding Submission

Therefore, it is submitted that despite the improvements in s.78—such as allowing the court to check the method by which evidence was obtained—the main shortcoming of the provision is that the discretion it grants is unguided. A clearer framework or guideline would better control that discretion and promote consistency and fairness in the exclusion of illegally obtained evidence.