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Section 78 of the Police and Criminal Evidence Act 1984

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 ad...

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...[1994] 98 Cr. App. R. 209
DPP v Marshall (Robert Dennis) [1988] 3 All E.R. 683
M. A. Gelowitz, Section 78 of the police and criminal evidence act 1984: Middle ground or no mans land?, L. Q. Rev. 327, 1990 at 329
M. A. Gelowitz, Section 78 of the police and criminal evidence act 1984: Middle ground or no mans land?, L. Q. Rev. 327, 1990 at 329
R May, Fair play at Trial: an interim assessment of section 78 of the police and criminal evidence act 1984, Criminal Law Review, 1988
R v Harwood [1989] Crim. L.R. 285
Andrew L.-T. Choo, Entrapment and Section 78 of Pace, The Cambridge Law Journal, Vol. 51, No. 2 (Jul., 1992), pp. 236-238
Andrew L.-T. Choo, Entrapment and Section 78 of Pace, The Cambridge Law Journal, Vol. 51, No. 2 (Jul., 1992), pp. 236-238
R v Gill and Ranuana [1989] Crim. L.R. 358
R v Samuel [1988] 2 WLR 920
R v Foster [1987] Crim LR 821
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