Exclusion of Evidence — SQE1 FLK2 Criminal Law and Practice

An officer let himself into your client's flat. No warrant. Nobody asked him in. He photographed what he found, and on the doorstep, before any caution, he took a short statement. Those photographs are the only evidence that your client handled stolen goods. Your client wants two things. He wants the photographs kept from the jury. And if that fails, he wants the case stopped altogether.

Those are two different questions with two different answers, and mixing them up is the classic way to lose marks here. Keeping evidence out is one job. Stopping a prosecution is a much bigger one. This is Exclusion of Evidence, the thirteenth topic in Criminal Law and Practice. Three routes, three tests, three remedies. Keep your client in mind. We are coming back for him.

Here is the route. Section 78 of PACE first, because that is the workhorse. Then what counts as unfair police conduct, and what a breach of the Codes actually buys you. Then entrapment, then delay. Then Article 6 of the ECHR. Then abuse of process, where your client's second wish lives. Then the balancing exercise, and finally the middle ground between admitting evidence and excluding it.

Start with the general rule, because everything else is an exception to it. In criminal proceedings, all relevant evidence is admissible. Evidence is not kept out because the police behaved badly. It is kept out only where admitting it would be unfair or contrary to the public interest.

Three routes get you there. First, section 78 of PACE 1984, a discretion to exclude prosecution evidence obtained unfairly. Second, Article 6 of the ECHR, the right to a fair trial. Third, the court's inherent jurisdiction to stay proceedings as an abuse of process. Different tests. Different remedies. In an exam question, consider all three.

Section 78 first, and the words matter, so take them in pieces. The court may refuse to allow evidence on which the prosecution proposes to rely. That is the first limb. The court must have regard to all the circumstances, including the circumstances in which the evidence was obtained. That is the second. And the question is whether admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

Now the scope, and there are two traps in it. Section 78 reaches all evidence the prosecution proposes to rely on, whoever obtained it. Police, private individuals, undercover officers, foreign authorities. So try this. Two men are tried for an assault, and the prosecution rely on footage filmed by a passer-by acting entirely on his own. Is section 78 available? Yes. Nothing turns on who obtained it.

Now the second trap. One of those men also wants to keep out a written statement his co-defendant proposes to put before the court, blaming him for everything. Same provision? No. Section 78 is confined to evidence on which the prosecution proposes to rely. It gives one defendant no power to exclude what a co-defendant adduces. He meets that statement by cross-examination and argument instead.

And this is the sentence to write on your hand. Section 78 does not automatically exclude anything. It is a discretion, and the threshold is high.

What counts as unfair conduct? Oppression, meaning physical or psychological pressure applied to get evidence. Inducement, meaning a benefit offered or a threat made to get someone to confess. Trickery. Failure to follow procedure. And it does not have to be deliberate. Careless or negligent behaviour can trigger section 78 if it produces unfairness.

Where did this come from? At common law, R v Sang, in 1980, held two things. A judge always has a discretion to refuse evidence whose prejudicial effect outweighs its probative value. But there was a limit. Apart from confessions, and evidence obtained from the accused after the offence, there was no such discretion. Relevant evidence was not excluded merely because it had been obtained unfairly. Section 78 has since put a wider discretion on a statutory footing.

Take a concrete one. A man is arrested at home for assault. While he is walked to the police car, an officer asks what happened at the pub. No caution. He answers at length and admits punching first. Must the judge exclude what he said? No. A failure to caution breaches Code C, but a breach of a Code does not of itself make evidence inadmissible. The judge asks the section 78 question.

Which brings us to the Codes. PACE comes with Codes of Practice, Codes A to G, setting out how police should exercise their powers. Stop and search, detention, questioning, identification. A breach of the Codes does not itself make evidence inadmissible. It is a factor the court takes into account under section 78.

So how significant was the breach? That is the real question. A minor or technical breach is unlikely to tip the balance. Officers who fail to hand a woman a copy of the search warrant have broken the Code. But the counterfeit banknotes in her kitchen drawer are exactly what they appear to be, and they would have been found anyway.

Now the other end. A serious breach that goes to the heart of fairness is a different matter. Denying a suspect access to legal advice. Failing to record an interview. Those are much more likely to lead to exclusion, and the language the courts use is worth borrowing. The breaches that lead to exclusion are the significant and substantial ones.

Entrapment. A state agent, usually an undercover officer, incites or induces someone to commit an offence they would not otherwise have committed. Contrast a controlled operation, where the police simply provide an opportunity to someone already willing. The line is between providing an opportunity and planting the criminal idea.

Two operations. Judge them. First, an officer visits a bar four times over a month, each time asking a man whether he can get cocaine. The man refuses three times, saying he does not deal. On the fourth visit the officer pleads desperation and offers £200 for a single gram. The man buys a wrap from an acquaintance and passes it over at cost. No convictions, and no intelligence about him before the operation began.

Second. Police have intelligence from three separate sources that a man behind a nightclub bar sells cocaine. A properly authorised test purchase. The officer visits once and asks, in ordinary terms, whether he can sort a gram. Without hesitation the man produces a wrap from his pocket, names £80, and completes the sale. Opportunity, or incitement? The first is incitement. The second is opportunity.

R v Looseley, in 2001, drew that line. Where state agents lure a person into an offence he would not otherwise have committed, the ordinary response is a stay of the proceedings as an abuse of process. Exclusion under section 78 is the lesser alternative. And here is the trap. Entrapment is not a defence. You cannot invite a jury to acquit on it. You apply to the judge, not to the jury.

One more twist. A tabloid journalist, not a police officer, presses an actor into obtaining cocaine and records him. Same principle? No. The stay jurisdiction restrains misuse of state power, and a journalist acts for a newspaper, not the executive. No stay, but section 78 is still available.

Delay, briefly, because it appears in two places. A long gap between offence and charge prejudices a defendant. Memories fade, evidence is lost, and the charge hangs over him. Under section 78, delay matters if it affects the reliability of the evidence. More often it shows up as abuse of process.

Article 6 of the ECHR. Everyone charged with a criminal offence is entitled to a fair and public hearing within a reasonable time, by an independent and impartial tribunal established by law. It also carries the presumption of innocence, until guilt is proved according to law.

How does it bite? Mainly through section 78. The court must exercise its discretion compatibly with Article 6, and section 6 of the Human Rights Act 1998 requires it to act compatibly with Convention rights. Then there is R v Khan. Police attached a covert listening device to a private home and recorded a man incriminating himself. That breached Article 8, the right to privacy. Did the House of Lords exclude it? No.

It admitted the recording under section 78, and the European Court later found a violation of the privacy right but no breach of the fair trial right. That is the lesson. Improperly obtained evidence is not automatically excluded. Note too how the two tests differ. Section 78 looks at how the evidence was obtained. Article 6 asks whether the trial as a whole would be unfair. Section 78 is a discretion. Article 6 is not.

So raise section 78 first. It is the most flexible, and if it succeeds you need nothing else. If the judge admits the evidence, Article 6 is your fallback, asking the harder question. And only if both fail do you reach for a stay.

Abuse of process. The court has an inherent jurisdiction to stay proceedings. It is the most drastic remedy there is, because it ends the case rather than removing a piece of evidence from it. R v Maxwell, in 2010, set out two categories. First, where it is impossible to give the defendant a fair trial. Second, where a fair trial is possible but it would offend the court's sense of justice and propriety to try him at all.

That distinction matters more than it looks. Take a man facing two indictments. On the first, the exhibits store has destroyed the only recording and both eyewitnesses have died, so he cannot have a fair trial of that charge. On the second, the evidence is intact and a fair trial is possible, but the judge has found that undercover officers incited him. Entitled to a stay, or a discretion?

On the first, entitled. The proceedings are stayed without more, and no balancing of competing interests arises. On the second, a discretion, and the court weighs the competing public interests before deciding.

The second category has a famous illustration. A man wanted here for fraud fled to a country with no extradition arrangements. Rather than use the lawful routes, British investigators arranged for local agents to seize him and put him on a plane to London. Everyone accepted that a scrupulously fair trial was possible. The House of Lords stayed the prosecution anyway.

Why? Because the courts will not lend their process to executive lawlessness. The integrity of the system matters as much as the fairness of the individual hearing. The same category covers entrapment, delay and double jeopardy. And on double jeopardy, note the exception. The Criminal Justice Act 2003 allows a person acquitted of a serious offence to be retried where there is new and compelling evidence.

Now the balance itself. Favouring exclusion: serious or deliberate misconduct, a breach of fundamental rights, and evidence that could readily have been obtained lawfully, so the breach was unnecessary. Also a defendant left with no defence, unreliable evidence, and a less serious charge.

Favouring admission: a very serious charge, reliable and strong evidence, and misconduct that was minor or unintentional. Also an impropriety that casts no doubt on what the evidence shows, and the fact that excluding it would end the prosecution. Notice how those cut across each other. The more serious the offence, the stronger the case for admitting. The more serious the misconduct, the stronger the case for excluding.

Last, the middle ground. Sometimes evidence is not so unfairly obtained that it must be excluded, but the jury should be warned about it. The judge admits it and tells them to treat it with caution. That is the natural course where a breach is real but its sting is absent: an interview without a caution, but recorded, with legal advice offered and declined.

But be clear what a warning is not. The evidence is still before the jury, and the jury can still convict on it. Where the misconduct is serious, exclusion is the remedy, not a warning.

A word on how SQE1 tests this. You will not be asked to recall a case name or a section number. You get a scenario, five answers, and one instruction: pick the best. So learn what each route does. The names are memory pegs, nothing more.

If you keep only three pegs. R v Sang, for the common law starting point that relevant evidence is not excluded merely because it was improperly obtained. R v Looseley, for the line between providing an opportunity and inciting an offence, and for the rule that entrapment is not a defence. And R v Maxwell, for the two categories of abuse of process, one of which entitles the defendant to a stay and one of which does not.

Four traps. One: a breach of the Codes is not automatically fatal to the prosecution case. It is a factor under section 78. The defence must show that the breach was significant and that admitting the evidence would have an adverse effect on the fairness of the proceedings. Two: entrapment is not a substantive defence. You cannot plead it and be acquitted. It goes to exclusion or to a stay, and the defendant still has to face the charges.

Three: section 78 does not automatically exclude anything. The court weighs the unfairness of admitting against the public interest in convicting the guilty. Even serious misconduct will not always lead to exclusion if the evidence is crucial and reliable. Four: a judicial warning is not exclusion. The evidence is still before the jury, and the jury can still act on it.

And one more that costs marks. Do not stop at the first route that fails. The defence should raise Article 6 and abuse of process too, if the facts support it. Three routes, three tests, three remedies.

Quick check. A man is charged with assault. Some prosecution evidence was obtained in breach of the Codes, though carelessly rather than deliberately. A witness statement that might have helped him has been mislaid, but the witness herself is available and willing to give evidence. The judge will hear an application about that evidence. The solicitor's first application is nevertheless for a stay as an abuse of process.

Is that the right course? Three candidate answers. One: yes, because a stay is the first remedy to consider whenever evidence has been obtained unfairly. Two: no, because a stay is available only where the prosecution have acted in deliberate bad faith. Three: no, because a stay ends the case and is reserved for cases where no lesser remedy suffices. Pause here if you want a moment.

The answer is three. A stay is the most drastic order available, because it brings the prosecution to an end rather than removing a piece of evidence from it. It is granted only where nothing less will secure a fair trial, so the court asks first what the lesser remedies can achieve. Here both are open. The evidence obtained in breach can be excluded under section 78, and the mislaid statement can be met by calling the witness, who is available and willing.

With those routes open, the stay application is premature.

Why the others fail. One inverts the order. Exclusion is the ordinary response to evidence obtained unfairly, and a stay is what remains when no lesser remedy will do. Two invents a precondition: bad faith is not required.

Five things to take away. One: all relevant evidence is admissible, and exclusion is the exception. Two: section 78 is a discretion over prosecution evidence, whoever obtained it. It asks whether admission would so adversely affect the fairness of the proceedings that the evidence ought not to be admitted.

Three: a breach of the Codes is a factor, never an automatic exclusion, and the breaches that matter are the significant and substantial ones. Four: entrapment is not a defence, and where the state created the crime the ordinary response is a stay. Five: two categories of abuse of process, and only the first entitles the defendant to a stay.

And your client, with the photographs and the doorstep statement? Section 78 first. The entry without a warrant and the questioning without a caution both feed into it. Then Article 6 if that fails. And the stay he wants is the last thing you reach for, not the first. Next time, Trial Procedure.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.