Please enable JavaScript.
Coggle requires JavaScript to display documents.
CRIMINAL LITIGATION LEGAL TEST - Coggle Diagram
CRIMINAL LITIGATION LEGAL TEST
Admissibility and Exclusion of Evidence
Exclusion of evidence under s.78 Pace
UNFAIR
Court has power to exclude any evidence if the court thinks that its admission would have an adverse effect on the fairness of the proceedings. It in other words, the court can exclude evidence which it believes will lead to the trial being unfair
DISCRETIONARY
Exclusion under s.78 is discretionary as the court MAY exclude it
s.78 can be used for ANY type of evidencee.g confession, hearsay, DNA
There are OTHER special rules for excluding specific types of evidence such as s.76 PACE for confessions. ss125-126 CJA 2003 for hearsay evidence and ss.101 , 103 CJA and Hanson Test for D's bad character evidence
HOW ABOUT EVIDENCE THAT IS COLLECTED AS A RESULT OF AN UNLAWFUL SEARCH?
may be excluded....
However... it is not an automatic exclusion
An application to exclude evidence under s.78 PACE will be discretionary to the judge depending on how serious the breach is and how far it affects the quality and reliability of evidence in a way that would adversely affect the fairness of the proceedings (rather than just discipline the police for failure to follow the Code). For example, a single, basic breach by the police is unlikely to justify exclusion. The breach must be ‘significant and substantial’. The court is less concerned with police misconduct and more concerned with how such conduct has affected the reliability and integrity of evidence. If the breach fundamentally undermines the case, the defence could seek a stay of the whole case as an abuse of process, but this is only where a fair trial is impossible -not to discipline the police for failure to follow the Code. Unfairness may arise when prosecutors deliberately manipulate court procedures.
Exclusion evidence under s.76 PACE
Confessions and statements of D MUST be excluded if they were or may have been obtained under either of the following conditions...
(1) By oppression of the person who made it
2)In consequence of 'anything said or done' which was likely under the circumstances at the time, to render the confession unreliable
Burdern of Proof is on prosecution
No Case to Answer
Bail Application
Sentencing and Plea in Mitigation
Court Bail
Court Leave (e.g. permission to rely on 116(2)(e) hearsay exception (fear)
You are applying to admit hearsay evidence because a witness is unwilling to testify due to fear.
CJA 2003, s.116(2)(e): Statement is admissible if the witness is unavailable due to fear and the court grants leave.
Must satisfy both:
Genuine fear, and
Interests of justice for admitting the statement
Advocacy Structure:
Identify the Evidence and Witness
"Your Honour, I apply under s.116(2)(e) CJA 2003 to admit the written statement of [Witness Name], who is unwilling to testify in person due to fear."
Clarify the nature of the statement
Confirm that it is a witness statement that would otherwise be admissible if given orally
Establish Fear
"The witness has expressed credible and consistent fear relating to the defendant/associated persons, as supported by [statement to police / psychiatric report / special measures application]."
Use affidavits, statements, or medical/psychological evidence to prove fear
Show source of fear (e.g., threats, past violence, intimidation)
✅ Important: Fear does not have to be reasonable — only genuine
s.116(4) – Interests of Justice
"It is in the interests of justice that the evidence is heard. The court must consider factors under s.116(4), and I will address each in turn."
The court must consider the following (advocate must address all):
Challenging adverse inference
Prosecution disclosure
Representation as to why an either-way offence should be tried summarily