SUMMARY OF ADMISSIBILITY OF EVIDENCE

OBTAINED BY LAW ENFORCEMENT AGENCIES AND

ENTRAPMENT
The Sole focus is on Code of Practice C which sets out the requirements
for the detention, treatment and questioning of the suspects not related to
TERRORISM in police custod!
E"C#$SIO% O& $%&'IR#( O)T'I%E* E+I*E%CE
THERE ARE TWO PROVISIONS UNDER WHICH THE COURT WOULD
CHOOSE TO EXCLUDE EVIDENCE AND THEY ARE:
1) S.78(1) PACE
) S.8(!) PACE
This would ,e done , the use of ".78 PACE. The e-idence which would
,e e.cluded is usuall that ,rought , the PROSECUTION and this is
DISCRETIONARY as the court MAY refuse to allow e-idence which the
prosecution proposes to rel on! The court would ha-e to ta/e all the
circumstances into consideration when the are doing this and also THE
CIRCUMSTANCES I#N WHICH THE EVIDENCE WAS OBTAINED in
which its admission would ha-e such an ADVERSE EFFECT on the
FAIRNESS of the proceedings!
The court can also choose not to admit e-idence , -irtue of ".8 (!) $%
PACE. This section retains the COMMO% #'0 power to e.clude e-idence!
The e-idence in this case means '## T1E E+I*E%CE which the prosecution
might see/ to adduce at the trial! ' trial 2udge has the *ISCRETIO% to deal
with the admissi,ilit of a confession under ".78 regardless of the power
contained in ".7& PACE 3which has to do with admissi,ilit of confessions!
N.B S.78 '" ( ")(*+ ,-$.+"".
1) I/+0)'%1 )2+ .'-.34")(0.+" '0 52'.2 )2+ +6'/+0.+ 5(" $7)('0+/
) W$38/ )2+ (/4'""'$0 2(6+ (0 (/6+-"+ +9+.) $0 )2+ %('-0+"" $%
)2+ ,-$.++/'0*":
N.B IT IS IMPERATIVE THAT A BALANCE HAS TO BE STRUC; ON
WHAT IS FAIR TO THE PROSECUTION AND WHAT IS FAIR TO THE
DEFENDANT.
&or the trial 2udge to e.ercise his discretionar powers under s!45 P'CE,
there has to ,e a SIGNIFICANT AND SUBSTANTIAL BREACH. This was
seen in the case of6
R V ;EENAN where the court held that not every breach or
combination of breaches of the code will justify the exclusion of evidence
under s.76 or s.78. They must be SIGNIFICANT AND SUBSTANTIAL.
R V WALSH
The accused was charged with ro,,er and ha-ing a 7re arm with intent
to commit an o8ence! 't the trial, the P sought to adduce e-idence of
admissions allegedl made , the appellant! There was a ,reach of s!95
and Code C! The appellant wanted the 2udge to rule that there was a
,reach and the trial 2udge held that NOT ALL SUBSTANTIAL AND
SIGNIFICANT BREACH WOULD BE A BREACH OF S.58 OR THE CODE
OF PRACTICE AND HAVE AN ADVERSE EFFECT ON THE FAIRNESS
OF THE PROCEEDINGS BUT SUCH AN ADVERSE EFFECT THAT IT
WOULD BE IN THE INTEREST OF JUSTICE FOR THE EVIDENCE TO BE
EXCLUDED.
!)FAIRNESS OF PROCEEDINGS
The 2udge under s!45 would ,e a,le to e.ercise his discretion to e.clude
e-idence in situations where it would ha-e an ad-erse e8ect on the
FAIRNESS OF THE PROCEEDINGS! This was seen in the case of R 6
LOOSELY where the * as/ed the court to pre-ent the admissi,ilit of
e-idence ,ecause it was against the fairness of the proceedings! The
phrase fairness of the proceedings is directed primaril at matters going
to fairness of6
'ctual Conduct of Trial 3':
Relia,ilit of E-idence 3R:
*efendants; a,ilit to test its relia,ilit 3*:
There are certain tpes of conduct that can lead to the e.ercise of the
S!45 PO0ER
<: PRESE%CE OR ')SE%CE O& =OO* &'IT1
>: 'CC$SE* %OT TO#* O& RI=1TS TO #E='# REPRESE%T'TI+E
PAIT
?: I%TER+IE0 &ORM'#IT( %OT &O##O0E*
@: TRICAS OR TR'PS
PRESENCE OR ABSENCE OF GOOD FAITH
CANALE: In this case, the appellant was ,eing inter-iewed and he was
made to repeat admissions which he had made in pre-ious inter-iews! The
police had not recorded the other inter-iews which were true and that the
last one was , a tric/! The court held in the case that ,reaches of the
code was the reason to quash the con-iction ,ecause there were
<=(*-(0)<> </+8'7+-()+< (0/ <.10'.(8< ,reaches of the Code of Practice,
and ,ecause the most important e-idence in the shape of a
contemporaneous note was not a-aila,le to the 2udge!
ACCUSED NOT TOLD OF RIGHTS OR HAVE ACCESS TO A LEGAL
REPRESENTATIVE
This is seen as a ,reach of ".?& (0/ (8"$ .$/+ ?.1. 'n person arrested
and held in custod at a police station ma on request ha-e one person
/nown to them or li/el to ta/e an interest in their welfare! ) -irtue of
".?8> person held in custod in police station or other premises shall ,e
entitled to ;IF HE RE@UESTS, to consult an solicitor pri-atel at an
time!
C$/+ ..&.1 all detainees must ,e informed that the ma at an time
consult and communicate pri-atel with a solicitor whether in person or
-ia telephoneB;;
VERNON: In this case, * was inter-iewed and made a confession and was
not informed a,out the dut solicitor scheme nor the fact that a solicitor
was on her wa! It was held that the e-idence was inadmissi,le, that had
* /nown of the dut solicitor scheme she would not ha-e consented to the
inter-iew, and that to admit the e-idence would therefore ,e unfair within
the P$8'.+ (0/ C-'4'0(8 E6'/+0.+ A.) 1A8B ".78 .
INTERVIEW FORMALITIES NOT COMPLIED WITH
Code c!<<!<<6 The inter-iew formalit has to ,e complied with as accurate
records must ,e made of each inter-iew! 'n written record must also ,e
made and completed during the inter-iew! %!) THE INTERVIEW MUST
CONSTITUTE A VERBATIM RECORD OF WHAT HAS BEEN SAID OR
AN ACCOUNT WHICH IS ADE@UATELY AND ACCURATELY
SUMMARISED.
NEIL
' trial 2udge ma e.clude an inter-iew of that particular inter-iew was a
fundamental part of the continuing nature of a pre-ious inter-iew! The
new inter-iew should ,e a FUNDAMENTAL AND CONTINUING NATURE
of the other inter-iew!
USE OF TRIC;SCTRAPS BY THE POLICE
This was seen in the case of R V MASON. In this case, the * and his
solicitor was told that his 7nger prints had ,een found in the crime scene!
*;s con-iction was quashed ,ecause the police oCcers tric/ed him into
ma/ing a confession! The trial 2udge in this case wrongl admitted the
e-idence!
R V BAILEY D SMITH
In this case, the * was tric/ed into ,elie-ing that his cell was not ,ugged!
There is nothing in the Police and Criminal E-idence 'ct <D5@ which
pre-ents e-idence, o,tained as a result of police oCcers E,uggingE a cell
where prisoners are held, ,eing admissi,le in court! It was 1eld, that the
police were under no dut to protect prisoners from ma/ing incriminating
statements to one another, e-en where the had e.ercised their right to
silence!
H (1A87)
In this case, a rape -ictim lured the * into gi-ing e-idence in a taped
telephone con-ersation! The court held that the would ha-e an ad-erse
e8ect on the proceedings!
BURDEN OF PROOF
The )OP rests on the prosecution , -irtue of s!45! 1owe-er, the court
would uphold the *;s position when the show that6 BESAU
There was a BREACH of the rules 3)RE'C1 ):
The ,reach was SIGNIFICANT AND SUBSTANTIAL 3S'S: KEENAN
CF WALSH
It (9+.)+/ )2+ ,-$.++/'0*" 30%('-81 from the -iew of the
defendant
$nfairness is so GREAT that e-idence should ,e e.cluded! 3$:
THE COMMON LAW POWER TO EXCLUDE S.8(!)
R V SCOTT
L$-/ G-'F)2" "('/ a 2udge also has the discretionar power to e.clude
RE#E+'%T E+I*E%CE if it i !"#"$%& i! '%("% t' "#)%" $ f$i%
t%i$*.
ABUSE OF PROCESS
In situations where there has also ,een an a,use of process, the courts
would order a sta of proceedings! This was seen in the case of R 6
M(G5+88. The court would order a sta of proceedings in circumstances
where it wants to protect the integrit of the Criminal Fustice Sstem! This
would ,e done after the court has considered all the circumstances and
that the trial would $9+0/ )2+ .$3-)" "+0"+ $% H3")'.+
(0/ ,-$,-'+)1. It is howe-er for the 2udge in the e.ercise of his
discretion to decide whether there has ,een an a,use of process!
This was ordered in the case of R 6 H$-"+%+--1 EG.P(-)+
B+00+)) where a sta of proceedings was ordered ,ecause the
defendant had ,een forci,l a,ducted and ,rought to a countr to face
trial in disregard of e.tradition laws!
ENTRAPMENT
THE LEADING CASE IS R V LOOSELY
Entrapment occurs when the commission of an o8ence , the defendant
has ,een ,rought , the states own agents!
The leading case on entrapment is R 6 L$$"+81 IJJ1K U;HL ?!. The
case was concerned with the actions of underco-er police oCcers carring
out test purchase operations! #ord %icholls identi7ed that a useful guide
when considering whether the conduct of the police amounted to inciting
or instigating crime was to ascertain 52+)2+- )2+ ,$8'.+ /'/
4$-+ )2(0 ,-+"+0) )2+ /+%+0/(0) 5')2 (0
30+G.+,)'$0(8 $,,$-)30')1 )$ .$44') ( .-'4+. If
the police conduct preceding the commission of the o8ence was no more
than might ha-e ,een e.pected , others in the circumstances this would
not constitute entrapment! If, howe-er, it went ,eond this an a,use of
process , the state ma well ,e esta,lished!
L$-/ N'.2$88" $% B'-L+02+(/ every court has an inherent duty to
prevent abuse of its process that executive aents of the state do not
misuse the coercive functions of the courts
' situation of entrapment amounts to a misuse of state power and an
a,use of the process of the courts!
ISSUES TO BE LOO;ED FOR IN
ENTRAPMENT
UNEXCEPTIONAL OPPORTUNITY
ACTIVE PARTICIPATION
DEGREE OF PERSISTENCE
DIFFICULTY IN EVIDENCE
VULNERABLE ACCUSED
R 6 CHRISTOU CF MASON (A CASE OF TRIC;)
In this case, the police set up a 2eweller ,usiness which made them pose
as the sellers and recorded the transaction on 7lm and tape! This was
seen as PROACTIVE POLICING and the court said that the
e-idence was rele-ant! It was HELD that the accused had
VOLUNTARLIY APPLIED himself to the tric/ 3in the sense that
the did in the shop e.actl what the intended to do: as a result, this had
not resulted in an unfairness!
N.B IN SITUATIONS WHERE A POLICE IS INTERVIEWING A
SUSPECT> HE IS SEEN AS THE SUPERIOR PERSON BECAUSE HE IS
IN A POSITION OF AUTHORITY AS THE SUSPECTCACCUSED WOULD
NOT BE SEEN IN THE SAME POSITION AS HE IS. IN THE CASE OF
CHRISTOU> THERE WAS NO @UESTIONING BY THE OFFICERS AS
SUCH AS THE CONVERSATION WAS ON E@UAL TERMS> THERE WAS
NO PRESSURE OR INTIMIDATION.
R V SANG: T2+-+ '" 0$ COMMON LAW DEFENCE $% +0)-(,4+0).
ENTRAPMENT IS NOT A SUBSTANTIVE DEFENCE IN ENGLISH LAW.
The ,asis for this is that e-en though a defendant has ,een entrapped to
commit an o8ence, 2+ ")'88 2(" )2+ 0+.+""(-1 4+0)(8 +8+4+0) $- $%
.$3-"+ 2(" .$44'))+/ )2+ (.)3" -+3" $% )2+ $9+0.+.
R 6 SMURTHWAITE
In this case, two spouses sought to get a contract /iller to /ill themsel-es
and he didn;t /now the person he was contracting was an underco-er
police oCcer! 1e sought to ha-e the e-idence e.cluded ,ut the court held
that e-idence should not ,e e.cluded simpl on the grounds that it was
unfairl or improperl o,tained!
The 1O$SE O& #OR*S concluded that 01ERE ' *E&E%*'%T 1'S )EE%
E%TR'PPE*, A STAY IS THE APPROPRIATE REMEDY NOT BECAUSE
THE DEFENDANT IS GUILTY OF THE OFFENCE BUT BECAUSE HE
COULD NOT RECEIVE A FAIR TRIAL BUT BECAUSE IT WOULD BE
UNFAIR TO TRY HIM AT ALL. N.B THIS IS NOT A S.78
ADMISSIBILITY ARGUMENT. WHAT THIS
MEANS IS THAT THERE SHOULD NOT BE ANY
TRIAL AT ALL.
R 6 MOON .% MONES
The appellant was a HEROIN addict and the prosecution was a police
oCce and supplied her with a small amount of heroin and then charged
her with possession with an intent to suppl! The police oCcer was acting
as a test purchaser which was to ,u the drugs at that point! The
appellant heroin addict 3M: appealed against the refusal to sta her
prosecution as an a,use of process in respect of an o8ence of possession
with intent to suppl drugs! 'fter much persuasion , an underco-er
policewoman 3F:, M had supplied F with a small quantit of heroin which
she o,tained from a dealer!
1eld, allowing the appeal, that 3<: although the underco-er police
operation had ,een ,ona 7de and the police had reasona,l sta/ed out
the area in which M had supplied the heroin, there was no e-idence, with
the e.ception of the suppl to F, that M would ha-e ,een prepared to
suppl an wouldG,e purchaser!
N.B
1.) M 5(" ( VULNERABLE PERSON '.+. 7+'0* )2() "2+ 5(" (0
(//'.)
.) T2+ ,$8'.+ 5(" PERSISTENT (0/ )2+1 5+0) )$$ %(- 71 .-+()'0*
)2+ $9+0.+.
!.) T2+-+ 5(" 0$ +6'/+0.+ )2() M '0)+0/+/ )$ "3,,81.
B.) M 5(" 83-+/ $- +0)-(,,+/ '0)$ ( .-'4+ (0/ )2+ ,-$"+.3)'$0
2(/ .(3"+/ )2+ .-'4+ -()2+- )2(0 ,-$6'/'0* ( 4+-+ $,,$-)30')1
%$- ').
R 6 MONES .% MOON
Message was written on the wall ,ecause a man was tring to engage
girls in se.ual acti-ities! 'n underco-er police oCcer decided to respond
to the message and the person was arrested! The court said that the
e-idence was admissi,le for the following reasons6 (PRAN)
<! P-$6'/'0* $,,$-)30')16 The pretence of the police oCcer did not
go ,eond pro-iding the necessar opportunit for the appellant to
commit the o8ence!
>! R+("$0: The reason was to gather e-idence!
?! A3)2$-'"()'$06 The operation was properl authorised!
@! The NATURE of the o8ence6 it is usuall -er diCcult to detect!
R 6 HARMES D CRANE
In this case, the accused were con-icted for drug o8ences as the
conspired with the police oCcers to import drugs into the countr through
the airport! The court held that despite the fact that the conduct of the
oCcers was ,oth CRIMINAL (0/ UNAUTHORISED> it was not seen as
SERIOUSLY IMPROPER to require the court to inter-ene to pre-ent the
prosecution for conspirac! N.B THIS WAS A POLICY DECISION BY THE
COURT.
I) 5(" ")()+/ 71 )2+ .$3-) )2() )2+ .$0/3.) $% )2+ ,$8'.+ $F.+-"
5(" 0$) +G.+,)'$0(8 (0/ /'/ 0$) *$ 7+1$0/ )2() 52'.2 5("
0+.+""(-1 )$ "2$5 )2+'- 5'88'0*0+"" ) /+(8 '0 /-3*". T2+ $F.+-
(.)'6')'+" ,(8+ '0)$ '0"'*0'N.(0.+ '0 .$4,(-'"$0 )$ )2+ $9+-"
4(/+ 71 H(-4+" )$ '4,$-) )2+ /-3*"O
NOTTINGHAM CITY COUNCIL V AMIN
I) '" (..+,)(78+ %$- ,$8'.+ $F.+-" )$ ,$"+ (" %(-+ ,(1'0*
,(""+0*+-" )$ .().2 (0 308'.+0"+/ )(G' /-'6+-.