PACE section 78: the separate fairness discretion

PACE s 78(1) applies to evidence on which the prosecution proposes to rely, not merely confessions. Having regard to all the circumstances, including how the evidence was obtained, the court may refuse to allow it where its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

That section 78 discretionGlossary termSection 78 discretion is a structured evaluation under a statutory test, not a personal preference. The focus is the fairness of admitting the evidence in these proceedings, rather than punishment of the police for misconduct. Reliability may be important, but it is not the entire fairness inquiry. A lost opportunity for advice, impaired participation, inability to reconstruct or test an interview, or deliberate circumvention of a safeguard can matter even where the evidence appears accurate. (PACE s 78; Hasan, paragraph 53.)

Keep the three principal routes distinct:

Section 78 contains no equivalent express prosecution burden or beyond-reasonable-doubt standard. An applicant should identify and substantiate the obtaining circumstances and claimed unfairness. The court must then decide the statutory question; importing s 76’s proof rule does not answer it. Section 78(2) preserves any rule of law requiring exclusion. “Discretionary” therefore does not mean that s 78 can override mandatory s 76 exclusion.

For a prosecution confession against its maker, address s 76 first because it is the targeted mandatory safeguard. A confession that survives it can still be refused under s 78. A finding that the prosecution has proved that the confession was not obtained by a prohibited s 76 method does not decide the wider fairness question. Equally, unlawful or improper acquisition alone is not a self-executing rule of inadmissibility: explain why admission has the statutory adverse effect.

Police-station advice: preserve the remedy distinction

A confession includes a statement wholly or partly adverse to its maker, whether or not made to a person in authority and whether made in words or otherwise. It need not be a signed statement admitting the whole offence. If the prosecution proposes to use a confession and it is represented that it was or may have been obtained by oppression or in consequence of something said or done likely, in the circumstances, to render a resulting confession unreliable, PACE section 76(2) requires exclusion unless the prosecution proves beyond reasonable doubt that it was not so obtained. The fact that the confession may be true does not answer that statutory question. Authority: PACE, sections 76(1)–(3), (8) and 82(1).

Section 78 is different: the court may refuse prosecution evidence where, considering all the circumstances, including how it was obtained, admission would so adversely affect fairness that it ought not be admitted. A Code breach may support that assessment, but breach does not automatically mean exclusion or acquittal. Under section 67(10)–(11), a failure to comply with a Code does not itself create criminal or civil liability; a relevant Code provision must nevertheless be taken into account by the court. An unlawful arrest or detention may engage a separate remedy on its own legal basis. Authority: PACE, sections 67(10)–(11) and 78; Code G, paragraph 1.3.

Deceit, privilege and the right remedy

MasonKey caseR v Mason(1988) 86 Cr App R 349; explained in R v Farrell [2004] EWCA Crim 597, paragraphs 19–28, as explained in Farrell, distinguishes inventing incriminating evidence to mislead the solicitor from withholding every detail of an investigation. Ask exactly what was said, how it affected advice and what evidence resulted. Do not convert either example into a universal rule that all non-disclosure is lawful or all police deceit establishes oppression.

A stay for abuse of process stops the prosecution through the court's supervisory jurisdiction. It is not the same as excluding an item of evidence under section 78. GrantKey caseR v Grant[2005] EWCA Crim 1089; considered in Warren v Attorney General for Jersey [2011] UKPC 10, paragraphs 31–37 must be read with WarrenKey caseWarren v Attorney General for Jersey[2011] UKPC 10, paragraphs 21–37 and the domestic explanation in R v Norman [2016] EWCA Crim 1564, paragraphs 21–23.

For the integrity category, consider the nature of the misconduct, bad faith, rights affected, urgency, available sanctions and seriousness of the alleged crime. This is not a points system or a rule that privilege breaches always stop proceedings. An absence of demonstrated trial prejudice does not automatically defeat the integrity argument, but it can matter to the assessment. The judge must identify the correct category and give reasons.