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Exclusion of evidence in court

1. The two sections in the Investigation stage of the Guide on Collecting witness evidence and Collecting physical evidence deal with obtaining evidence, and includes the circumstances in which evidence may be excluded at court under sections 76 and 78 of the Police and Criminal Evidence Act 1984 ("PACE").

2. In the Crown Court a defence application to the Judge for an order excluding evidence of a defendant's confession under section 76 PACE (and an application to exclude may be made under section 78 at the same time as an alternative) should normally be taken immediately prior to the moment the evidence would be heard and in the absence of the jury.

3. In deciding the question of admissibility the Judge may hear legal argument without the need for evidence. However, evidence from the prosecution witness(es), and the defence may called on a "voir dire", which takes place in the absence of the jury and is effectively a `trial within a trial' to determine the issues relevant to the admissibility of the evidence objected to.

4. It is for the Judge to rule under section 76(2) PACE, having heard the evidence, whether the prosecution have established beyond reasonable doubt that the confession was not obtained in breach of section 76(2)(a) or (b). 35. If the challenge to the admissibility of the confession succeeds, the trial continues without the evidence of the confession. If the challenge fails, the evidence is given before the jury. Where a confession is a mixture of admission and exculpatory or self-serving assertions (i.e. evidence that seeks to remove blame from the defendant), the whole statement should be put in evidence.

5. In the magistrates' court, if the defence objection is based upon section 78 PACE it is a matter for the justices' discretion when they rule on admissibility. Under section 78 there is a wide power to exclude evidence on which the prosecution proposes to rely, if having regard to "all the circumstances" it would be unfair to admit it. Normally, in the view of these wider considerations, it will be more appropriate for the whole of the prosecution case to be heard, including the disputed evidence, before the justices decide issues of admissibility.

6. However if the objection is based on section 76 the wording of the section requires them to determine admissibility as soon as it is raised. The evidence concerning admissibility may be called on a "voir dire".

Updated 2020-09-07