Applying to Exclude Evidence
Where there is unhelpful evidence, it may be possible to seek to exclude this pursuant to Section 78 because it is unfair or prejudicial.
There is a residual discretion in respect of all evidence pursuant to the Police and Criminal Evidence Act 1984. This is set out in Section 78 and confirms that where the prejudicial effect of the admission of a piece of evidence outweighs the probative value it ought to be excluded.
It is common for applications to be made to exclude evidence where there are breaches of PACE. These are the Police codes that must be followed. Code C deals with interviews, , at Paragraph 11A defines an interview “must be carried out under caution”. There is a duty for any party investigating a criminal offence to have regard to any relevant provisions of the codes of practice (section 67(9), PACE 1984). Paragraph 12.3 is similarly clear in respect of written interviews which states that “all written statements made at police stations under caution shall be written on forms provided for the purpose”.
There is additional guidance at Annexe D of PACE Code C, which is particularly pertinent in this case. This states that unless the statement is made at a time when the restriction on drawing adverse inferences from silence applies, the maker be asked to write out and sign the following before writing what they want to say.
The case of R. v. Keenan [1990] 2 Q.B. 54 stated that where the breaches are significant and substantial the evidence of the Defendant’s interview ought not to be admitted. It is acknowledged in R v Sparks that a failure to caution will be treated as significant and substantial.
In R. v. Rogers and Tarran [1971] Crim.L.R. 413, Crichton J ruled that the prejudicial effect against the co-defendant outweighed the probative value against the maker of the statement and excluded it in the exercise of his discretion.
