Unlawfully and Unfairly Obtained Evidence

The defendant has a right to a fair trial and therefore his trial team must consider issues surrounding the admissibility of unlawfully and unfairly obtained evidence. This can be examined by looking at the position in common law s78 of PACE and the abuse of process procedure. Unlawfully obtained evidence is any prosecution evidence which has been obtained in a questionable or underhand manner.

S78 PACE 1984 has largely superseded the common law which is now found in s 82(3) PACE 1984. Evidence obtained by the police in breach of PACE or the Codes of Practice can be said to be obtained unlawfully and therefore vulnerable to being excluded in the exercise of the court's discretion. The courts tend to exclude unlawfully obtained evidence restrictively with the exception of confession and identification evidence.

Unlawfully obtained evidence includes:

  • Evidence obtained in breach of codes of practice under PACE
  • Evidence obtained through the use of an agent provocateur or entrapment
  • Evidence obtained through an unlawful search or seizure
  • Evidence obtained in violation of Article 8 – the right to privacy
  • Evidence obtained in violation of the right against self incrimination
  • Evidence obtained in breach of legal professional privilege

Common law position: evidence capable of prejudicing a fair trial can be excluded by the judge. This is a discretion now found in s 82(3) of PACE.  Evidence will be deemed prejudicial where its prejudicial effect outweighs it probative value.

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Discretion under s 78(4) PACE 1984: This is the main authority now used and states that the court may refuse to allow evidence on which the prosecution seek to rely if it appears to the court that having regard to all the circumstances including those in which the evidence was obtained the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. S78 is not restricted to unlawfully obtained evidence but any evidence on which the prosecution seek to rely. It has been used most successfully to exclude confession evidence that has been obtained in breach of safeguards of PACE and Code C.

Abuse of Process-  this is another means by which evidence may be excluded. This would be a very serious course of action for the court as it would in effect signal the end of the trial. In order to order a stay a court will have to hold that the defendant cannot enjoy a fair trial or as a result of the prosecution's actions it is not fair to try the defendant.  In R v Latif  (1996) 1 WLR 104  it was held that  the proceedings could be stayed where it was an affront to public conscience for the proceedings to continue or for the conviction to stand. Examples of where proceedings have been stayed for abuse of process include where:

  • Widespread pre trial publicity makes a fair trial very difficult if not impossible
  • There is a later prosecution where a previous trial was stayed
  • The prosecution has lost or failed to secure evidence relevant to the crime which might have assisted the defendant.
  • The prosecution has withheld relevant evidence

In the case of R v Khan (1996) 3 All ER 298, Khan was being investigated for drug smuggling and in order to obtain evidence the police attached a listening advice to his home. Although there was no statutory authorisation for use of such devices at the time the police obtained a tape showing Khan involved in the importation of heroin and they sought to use it in evidence against him at trial. On appeal it was argued that the tape was obtained in breach of Article 8 right to privacy and should have been excluded. The House of Lords however held that the evidence was rightly admitted under common law and s 78 PACE and did not in any way affect the fairness of the proceedings.

In R v Sanghera (2001) 1 Cr App R 299  evidence was admitted following an unlawful search at the defendant's address without his written consent  and although he did not contest the reliability of the evidence he stated that he would have wanted to be present in order to offer an immediate explanation about the money that was found. He therefore argued that the evidence should be excluded under s78 PACE 1984.The trial judge rejected this submission and the defendant was convicted and his conviction upheld by the Court of Appeal on the basis that the police had acted in good faith and the defendant had not been prejudiced in any way.