The trial judge will have to consider whether, in view of the circumstances in which this evidence was obtained, he should exercise the discretion which he has under s.78 of Police and Criminal Evidence Act 1984

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ANSWER TO THE Q: NO: 2

The present scenario is so pregnant with possible evidential issues that it necessitates a systematic consideration of each in an understandable and workable manner. Thus the present examination of possible evidential issues will proceed based on a chronological manner in keeping with the sequence of events in the scenario, such as admissibility of the recorded conversation between Bill and Charles during covert surveillance, Charles’s confession and Bill’s confession.

The first question that arises is whether the information obtained during covert surveillance will be admissible. The trial judge will have to consider whether, in view of the circumstances in which this evidence was obtained, he should exercise the discretion which he has under s.78 of Police and Criminal Evidence Act 1984 to exclude evidence of what was found on the ground that its admission would so adversely affect the fairness of the proceedings that it ought not to be admitted.

The general rule is that, as Crompton J put it obiter in R v Leathen, ‘it matters not how you get it, if you steal it even, it would be admissible in evidence’. The test of admissibility is whether the evidence is relevant. Lord Fraser said in Fox v Chief constable of Gwent, ‘ the duty of the court is to decide whether the appellant has committed the offence with which he is charged and not to discipline the police for exceeding their powers’. However, although there is no rule of exclusion, it is open to the court as an exercise of discretion to exclude improperly obtained evidence if its admission would be unfair. In R v Sang its exercise was limited to evidence obtained after the offence was committed. Thus the common law may apply to Bill and Charles because their conversation, which was recorded by the undercover officer, relates to past events.

It is implicit in s.78 (1) that it is possible for the way in which evidence is obtained to result in its exclusion. This is particularly likely where the police have acted in bad faith [Matto v Wolverhampton Crown Court (1987)].  It seems very likely that in this given scenario, the police were acting in bad faith and it is clear that their entry was unlawful.

In theory, the admissibility of evidence obtained by a trick can be challenged under s.78 (1). But, for a long time, evidence being obtained by eavesdropping has been admitted. In Re Jelene the judge admitted evidence of confessions made by the two defendants and tape recorded during conversations between them. The present position is illustrated in Khan v United Kingdom where it was held the methods adopted by the police in obtaining the evidence breached both Art.8 and Art.13 of the ECHR. Its underling principle is that evidence even if illegally or unfairly obtained, is admissible so long as it is relevant. However, this area of law is now governed by Regulation of Investigatory Powers Act 2000 (RIPA) which by s1 (1) made it unlawful for a person, intentionally and without lawful authority to intercept, at any place in the United Kingdom, any communication in the course of its transmission. However, s.4 of the Act gives police the power to undergo lawful interception. Therefore, it is submitted that the admissibility of the recorded conversation will depend whether or not it complies with the provisions of RIPA. 

Charles admission of having been involved to the robbery, is wholly or partly adverse to him. Therefore, it constitutes a confession within the definition in s. 82 (1) PACE and the question of admissibility arises.

At the police station, Charles appears to have not been cautioned and given information about access to legal advice, which may render his confession inadmissible. Under s.58 PACE and paragraph 11.2 of Code C, immediately prior to the commencement of any interview at a police station, the interviewing officer must remind the suspect of his entitlement to free legal advice. However, access to legal advice may be lawfully delayed for up to 36 hours in the case of serious arrestable offences (s.116 PACE). A serious arrestable offence includes one which involves serious financial loss or gain so this may well apply in the case of hinder the recovery of the jewellery. Thus, the failure in Charles’s case may well be permissible as long as the police can convince the court that they reasonably feared one of the contingencies referred to in s.58 (8) of PACE would arise. The fact that Charles did not want to see a solicitor would not make any difference. In any case, a wrongly authorised delay in obtaining legal advice does not render the confession automatically excluded under either s.76 or s.78 PACE. In R v Alladice, the court stressed that influential factors in excluding under s.78 were whether or not the police acted in bad faith and whether the presence of a solicitor would have made any difference, particularly to a seasoned offender.    

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However, there are arguably other pressing grounds to exclude the confession here under s.76 PACE. Has the confession been obtained by oppression? Once the defence raises the issue and it is accepted by the judge as possibility, the burden is on the prosecution to prove beyond reasonable doubt that it has not been so obtained. Under s.76 (2) (a) if the prosecution are unable to establish beyond reasonable doubt that the confession was not made as a result of  oppression, the accused’s confession will be held inadmissible even if there is plenty of other evidence in the case confirming its reliability. ...

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