TY - CHAP
T1 - England and wales
T2 - fair trial analysis and the presumed admissibility of physical evidence
AU - Choo, Andrew L.T.
N1 - Publisher Copyright:
© Springer Science+Business Media Dordrecht 2013.
PY - 2013
Y1 - 2013
N2 - 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.
AB - 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.
KW - Appellate Court
KW - Criminal Trial
KW - Domestic Court
KW - Fair Trial
KW - Legal Advice
UR - http://www.scopus.com/inward/record.url?scp=84957454833&partnerID=8YFLogxK
U2 - 10.1007/978-94-007-5348-8_14
DO - 10.1007/978-94-007-5348-8_14
M3 - Chapter (Book)
AN - SCOPUS:84957454833
SN - 9789400753471
T3 - Comparative Perspectives on Law and Justice
SP - 331
EP - 354
BT - Exclusionary Rules in Comparative Law
A2 - Thaman, Stephen C.
PB - Springer
CY - Dordrecht The Netherlands
ER -