Discretion to exclude identification evidence obtained after a Code D breach (PACE 1984 s.78)
Before holding a video identification, an officer investigating an assault in England shows the victim a single photograph of the suspect, Andre Silva, saying 'this is the man we've arrested'. The victim then picks Andre out at the video identification. At Andre's trial, the defence applies to exclude the identification evidence on the ground of the breach of Code D.
Which of the following best describes the court's power?
Choose one answer to see the reasoning.
Worked answer
Correct answer D: The court may refuse to admit it if, having regard to all the circumstances, including how it was obtained, its admission would so adversely affect the fairness of the proceedings that it ought not to be admitted.
THE RULE TO REMEMBER
Under s.78 PACE, the court may exclude any prosecution evidence whose admission would so adversely affect the fairness of proceedings that it ought not to be admitted.
Discretion to exclude identification evidence obtained after a Code D breach (PACE 1984 s.78)
Section 78(1) of PACE 1984 gives the court a discretion to refuse to allow evidence on which the prosecution proposes to rely if, having regard to all the circumstances, including the circumstances in which the evidence was obtained, its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. The section applies to any prosecution evidence, including identification evidence. A breach of Code D does not automatically lead to exclusion; the court considers whether the breach may have prejudiced the defendant and whether fairness requires exclusion. Showing the witness a single photograph of the arrested suspect immediately before the procedure is a serious breach that may well have contaminated the identification, so this is a strong case for the court to exercise its s.78 discretion.
Why A is wrong: A Code D breach does not make evidence automatically inadmissible; exclusion is discretionary under s.78.
Why B is wrong: Section 78 applies to any evidence on which the prosecution proposes to rely, not only confessions.
Why C is wrong: The mandatory beyond-reasonable-doubt test belongs to confessions under s.76(2), not to s.78.
Why E is wrong: Section 78 expressly empowers the court to refuse to admit unfairly obtained prosecution evidence.
A little more practice done.
Related questions
Excluding a confession obtained by an inducement: unreliability under PACE 1984 s.76(2)(b)
Which of the following best describes how the court must deal with the confession?
Extending detention without charge from 24 to 36 hours (PACE 1984 ss.41 and 42)
Which of the following best describes how Hannah's detention without charge may be extended?
Delaying access to legal advice at the police station (PACE s.58)
Which of the following best describes whether the delay is lawful?
A GOOD HABIT, DELIVERED
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