³ÉÈËÓ°Òô

The test for exclusion under PACE 1984, s 78

An accused has no entitlement to have evidence excluded simply because it has been obtained unlawfully. To protect an accused from wrongful conviction, however, section 78 of the Police and Criminal Evidence Act 1984 (PACE 1984) gives the court a discretionary power to exclude evidence, having regard to all the circumstances including how the evidence was obtained, if admission of the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.

The provision only applies to prosecution evidence and the discretion to exclude evidence in the Crown Court can only be exercised before the evidence is admitted. Once the evidence has been admitted, PACE 1984, s 78 will not apply and the defence will have to rely on the court's common law discretion to exclude evidence. This power is expressly preserved by PACE 1984. See R v Sat-Bhambra (1988) 88 Cr App Rep 55 (not reported by ³ÉÈËÓ°Òô®).

The test the court will apply in deciding