England and wales: fair trial analysis and the presumed admissibility of physical evidence

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Abstract

In England and Wales the Police and Criminal Evidence Act of 1984 (PACE) introduced two exclusionary rules which have taken their place in a judicial landscape, where, traditionally, all relevant and credible evidence was always admissible, regardless of the legality of its acquisition. One rule excludes statements or confessions obtained through “oppression” which goes beyond a rule which previously excluded confessions obtained as a result of torture, which nonetheless could be excluded under exercise of the judge’s traditional discretion to exclude evidence which lacks credibility. But the most important rule, is that of Article 78 PACE, which calls upon the judge to balance all of the circumstances of the case, the seriousness of the violation in the gathering of evidence, the seriousness of the crime, the interest violated, among other things, in determining whether the admission of the evidence “would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it”. This “fair trial” test has now been applied for nearly 30 years and has led to exclusion, for instance, in cases where the right to counsel has been violated, but virtually never in cases involving the violation of the right to privacy. English courts also never exclude physical evidence which is the fruit of an illegal search, or even an “oppressive” interrogation.

Original languageEnglish
Title of host publicationExclusionary Rules in Comparative Law
EditorsStephen C. Thaman
Place of PublicationDordrecht The Netherlands
PublisherSpringer
Chapter14
Pages331-354
Number of pages24
Edition1st
ISBN (Electronic)9789400753488
ISBN (Print)9789400753471
DOIs
Publication statusPublished - 2013
Externally publishedYes

Publication series

NameComparative Perspectives on Law and Justice
Volume20
ISSN (Print)2214-9902

Keywords

  • Appellate Court
  • Criminal Trial
  • Domestic Court
  • Fair Trial
  • Legal Advice

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