To a man with a hammer everything looks like a nail. I would submit this is the case in regards to Section 78 of the Police and Criminal Evidence Act 1984. The courts have been granted a tool and since its introduction have been wantonly applying it case after case. I will endeavour to argue that s.78 has been developed into the tool the courts sought as oppose to the tool they have been granted and the wording of the statute ignored. The point of s.78 has been glossed over and it has instead been utilized as if it were a subsection of s.76. Whilst ‘unnecessary’ is perhaps the wrong term to use the purpose of s.78 has been defeated.
I would first draw attention to how section 78 of PACE should be used. A judge has the discretion to use s.78 if “the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.” The key issue here is that the exclusion has to relate to the fairness of the proceedings. Whilst is states that circumstance surrounding the manner in which the evidence was obtained are relevant, the actual reason for its exclusion remains a question of the fairness of proceedings. An example of this can be found in the case of O’Loughlin where the defendant would not be able to cross-examine the witness. This would be a strict application of s.78 where the fairness of the proceedings is adversely effected. Unfortunately cases like this are a rarity. Bernard Robertson directs us to a long list of authorities in his article where the application of s.78 is inappropriate and/or wrong . Further to this he advocates his argument that cause must proceed effect. The cause is the admission of the evidence and the effect is the unfair proceedings. Only after the cause (the admitting of evidence) has occurred can the effect take place. This means the only viable area for the effect would be during court the court in session. Ergo the affected proceedings mentioned in the statute must refer to the court in session. I concur with this deduction and it is the underlying bases of my argument.
In the Mason case an inappropriate confession was excluded under s.78 by stretching the term “proceedings” to include activates carried out at the police station before the trial instead of applying the common law rule against evidenced obtained by deception . Section 82(3) was ignored in favour of s.78. Mr Robertson also directions us to the cases of Samuel and Foster . In these cases for all intents as purposes the evidence would be considered unreliable and excluded under s.76 of PACE had s.78 not existed. I would submit that in both cases the evidence would not have affected the fairness of proceedings, it would simply have been an unreliable confession. I would submit that these are very different things. A confession can be unfairly obtained but not affect the nature of the proceedings themselves, as such the proceedings remain fair.
In the case of Williams Mr Justice Wright refers to the case of...